CELEX: 62016TJ0640
Language: en
Date: 2018-10-18
Title: Judgment of the General Court (Fifth Chamber) of 18 October 2018.#GEA Group AG v European Commission.#Competition — Agreements, decisions and concerted practices — Heat stabilisers — Decision establishing an infringement of Article 81 EC — Decision amending the initial decision — Action for annulment — Interest in bringing proceedings — Admissibility — Fines — 10% ceiling — Group of companies — Equal treatment.#Case T-640/16.

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
18 October 2018 (*)
(Competition — Agreements, decisions and concerted practices — Heat stabilisers — Decision establishing an infringement of Article 81 EC — Decision amending the initial decision — Action for annulment — Interest in bringing proceedings — Admissibility — Fines — 10% ceiling — Group of companies — Equal treatment)
In Case T‑640/16,

GEA Group AG, established in Düsseldorf (Germany), represented by I. du Mont and C. Wagner, lawyers,
applicant,
v

European Commission, represented by P. Rossi, A. Biolan and V. Bottka, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2016) 3920 final of 29 June 2016 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 GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: N. Schall, Administrator,
having regard to the written part of the procedure and further to the hearing on 1 February 2018,
gives the following

Judgment

 Background to the dispute

1        The applicant, GEA Group AG, was created by the merger, in 2005, of Metallgesellschaft AG (‘MG’) and another company. MG was the ultimate parent company which held, before 2000, directly or through subsidiaries, the companies Chemson Gesellschaft für Polymer-Additive mbH (‘OCG’) and Polymer Additive Produktions- und Vertriebs GmbH (‘OCA’).

2        On 17 May 2000, MG sold OCG, which had been renamed Aachener Chemische Werke Gesellschaft für glastechnische Produkte und Verfahren mbH (‘ACW’).

3        Following its dissolution in May 2000, the business of OCA was absorbed by a company named, from 30 August 2000, Chemson Polymer-Additive AG (‘CPA’), which no longer belongs to that group, in respect of which the applicant was the ultimate parent company.
 Case T‑45/10

4        By 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 2009 decision’), the Commission found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two sets of agreements and anticompetitive arrangements or concerted practices covering the territory of the EEA and concerning, first, the tin stabiliser sector and, second, the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).

5        Under Article 1(2)(k) of the 2009 decision, the applicant was held liable for infringements committed in the ESBO/esters sector from 11 September 1991 to 17 May 2000.

6        The applicant was held liable for the entire period of infringement, as the successor of MG, for the infringements committed, from 11 September 1991 to 17 May 2000, by OCG and, from 13 March 1997 to 17 May 2000, by OCA.

7        In addition, as the successor of OCG, ACW was penalised, on the one hand, for the infringement committed by OCG throughout the period of infringement, namely from 11 September 1991 to 17 May 2000, and, on the other, for the infringement committed by OCA from 30 September 1999 to 17 May 2000, when the latter’s shares were wholly owned by OCG.

8        As the successor of OCA, CPA was penalised, on the one hand, for the infringement committed by OCA from 13 March 1997 to 17 May 2000 and, on the other, for the infringement committed by OCG from 30 September 1995 to 30 September 1999, when the latter’s shares were wholly owned by OCA. Under the second paragraph of Article 2 of the 2009 decision:
‘For the infringement(s) in the [ESBO/esters sector], the following fines are imposed:
...
(31) [the applicant], [ACW] and [CPA] are ... jointly and severally liable for: [EUR] 1 913 971;
(32) [the applicant] and [ACW] are ... jointly and severally liable for: [EUR] 1 432 229;
...’

9        By application lodged at the Court Registry on 28 January 2010, the applicant brought an action against the 2009 decision.

10      By judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), the Court dismissed the action brought by the applicant.
 Case T‑189/10

11      On 15 December 2009, ACW drew the European Commission’s attention to the fact that the fine imposed on it pursuant to the 2009 decision exceeded the ceiling of 10% of its total turnover (‘the 10% ceiling’) laid down in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81[EC] and 82 [EC] (OJ 2003 L 1, p. 1).

12      On account of the fact that the fine imposed on ACW exceeded the 10% ceiling, the Commission adopted, on 8 February 2010, Commission Decision C(2010) 727 final amending [the 2009] decision (‘the 2010 decision’).

13      In the 2010 decision, the Commission found that the fine for which ACW had been found to be jointly and severally liable with, on the one hand, the applicant and CPA and, on the other, the applicant, exceeded the 10% ceiling, with the result that it was necessary to amend the 2009 decision (see recital 2 of the 2010 decision).

14      The Commission also stated that the amount of the fine imposed on the applicant and CPA remained unchanged, but that the amount of the fine imposed on ACW should be reduced and that the 2010 decision would have no consequences for the other addressees of the 2009 decision.

15      Article 1 of the 2010 decision amended the second paragraph of Article 2 of the 2009 decision as follows:
‘Article 2, [point] 31 is replaced by the following text:
“(31.a) [the applicant], [ACW] and [CPA] are [jointly and severally] liable for [EUR] 1 086 129;
(31.b) [the applicant] and [CPA] are [jointly and severally] liable for [EUR] 827 842.”
Article 2, [point] 32 is replaced by the following text:
“(32) [the applicant] is liable for [EUR] 1 432 229.”’

16      By application lodged at the Court Registry on 20 April 2010, the applicant brought an action for annulment against the 2010 decision and requested, in the alternative, that the Court amend the amount of the fine imposed on it.

17      By judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the Court annulled the 2010 decision, in so far as it concerned the applicant. The Court held that the Commission had infringed the applicant’s rights of defence by adopting the 2010 decision without having first heard the applicant. 
 Contested decision

18      By letter of 5 February 2016, the Commission informed the applicant of its intention to adopt a new decision and invited ACW, CPA and the applicant to submit written observations.

19      The applicant submitted its written observations to the Commission on 24 March 2016.

20      By letter of 2 May 2016, the Commission responded to the applicant’s observations.

21      On 29 June 2016, the Commission adopted Decision C(2016) 3920 final, amending the 2009 decision (‘the contested decision’).

22      Article 1 of the contested decision reproduced identically the terms, set out in paragraph 15 above, of Article 1 of the 2010 decision, which amended the second paragraph of Article 2 of the 2009 decision.

23      Article 2 of the contested decision set the date by which the fines were due at 10 May 2010. 
 Procedure and forms of order sought

24      By application lodged at the Court Registry on 8 September 2016, the applicant brought the present action.

25      As an annex to its application, the applicant submitted the Commission’s observations of 18 March 2013 in reply to the Court’s question concerning the possible joinder of Cases T‑45/10 and T‑189/10 in the proceedings relating to those two cases (‘Annex A.9’).

26      On 22 September 2016, the President of the General Court adopted a measure of organisation of procedure for the purposes of asking the applicant whether the production of Annex A.9 had been authorised by the Commission.

27      On 27 September 2016, the applicant informed the Court that it had not requested the Commission’s permission with regard to the production of Annex A.9.

28      By decision of 28 September 2016, the President of the Fifth Chamber of the General Court decided not to withdraw Annex A.9 to the application from the case file, as, first, the document at issue related to earlier proceedings in Case T‑189/10 between the same main parties, second, Case T‑640/16 was connected to Cases T‑45/10 and T‑189/10, in that the contested decision in the present case followed the annulment of the 2010 decision in Case T‑189/10, and, third, Annex A.9 took the form of a statement from the Commission in reply to a measure of organisation of procedure adopted by the Court in Cases T‑45/10 and T‑189/10.

29      The parties presented oral argument and answered the questions put by the Court at the hearing on 1 February 2018.

30      The applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, reduce the amount of the fine and set a new date, after the adoption of the contested decision, for payment of the fine and for setting the starting point for establishing late payment interest; and
–        order the Commission to pay the costs.

31      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        in the alternative, dismiss the action as unfounded;
–        order the applicant to pay the costs.
 Law

32      By its action, the applicant seeks, as its principal claim, the annulment of the contested decision and, in the alternative, the amendment of the amount of the fine imposed on it.

33      In its defence, the Commission maintains that the action is inadmissible.

34      Since the applicant seeks, as its principle claim, annulment of the contested decision, it is only in the event that that claim is rejected that it will be necessary to examine the applicant’s claim, submitted in the alternative, seeking a reduction in the amount of the fine imposed on it.
 Admissibility

35      According to the Commission, the applicant has no legal interest in seeking the annulment of the contested decision.

36      First, it claims that the contested decision did not find any new infringement attributable to the applicant and did not amend the amount of the fine imposed on it in the 2009 decision, which became final with regard to the applicant following the Court’s judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507). 

37      Accordingly, the Commission takes the view that the annulment of the contested decision would procure no benefit for the applicant, since the applicant is required, in any event, to pay the fine for which it is liable pursuant to the 2009 decision. 

38      It adds that it would be otherwise, in the light of the judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission (T‑250/12, EU:T:2015:749, paragraphs 47 and 48), only if the applicant had been able to challenge, in addition to the fine, its participation in the infringement. 

39      Second, the fine imposed jointly and severally on ACW and CPA together with the applicant cannot be amended, since it was established by the 2010 decision, which has become final so far as concerns ACW and CPA.

40      The Commission observes that the applicant cannot require that ACW and CPA shoulder any greater or different liability than that established by the 2010 decision in order to cover the amounts still due under the 2009 decision.

41      As for the applicant, it claims that, as the addressee of the contested decision, it has standing to bring proceedings.

42      It adds that it also has a legal interest in bringing proceedings in that the annulment of the contested decision would oblige the Commission to repay the fine paid by the applicant on 22 July 2016.

43      With regard to the arguments put forward by the Commission relating to the admissibility of the action, the applicant submits that its reasoning is incorrect. First, it is based on the premiss that the 2009 decision constitutes a legal basis for the recovery of the fine.

44      The applicant takes the view that the Commission’s adoption of the contested decision can only be explained by the fact that the 2010 decision, which ‘replaced’ the 2009 decision, was annulled by the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

45      The Commission thus had to adopt a new decision on the substance so far as concerns the applicant in order to have a legal basis for imposing a fine on it.

46      Any reference to the 2009 decision therefore has no bearing on the admissibility of the action.

47      Second, the applicant claims that, even if the inadmissibility of the action were established, it should also have been dismissed as inadmissible in Case T‑189/10, since the Court was required to examine the admissibility of that action of its own motion. As that is not the case, the present action cannot be held to be inadmissible.

48      Third, the applicant submits that it has a legal interest in the Court’s ruling on the operative part of the 2009 decision, as replaced by the 2010 decision and restated in the contested decision, because, in Case T‑45/10, the Court was not in a position to rule on the joint and several liability of the companies, referred to in the operative part of the 2009 decision, especially after the annulment of the 2010 decision.

49      Fourth, the annulment of the contested decision would, on the one hand, require the Commission to determine afresh the joint and several liability of the applicant, so as to achieve a ‘better’ allocation of the fine and, on the other, provide a basis for bringing an action for damages before the General Court.

50      Fifth, the applicant points out that the action is not directed only at the ‘redetermination of liability’, but also challenges the imposition of the fines on it, the procedure leading to the adoption of the contested decision and the determination of the date for payment of those fines.

51      In that regard, it should be noted at the outset that the Commission does not dispute, for the purposes of assessing the admissibility of the application, the fact that the applicant has standing, which cannot in any event be seriously called into question since it is the addressee of the contested decision.

52      On the other hand, the Commission contends that the applicant does not have an interest in bringing proceedings.

53      In accordance with settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of that measure must be capable, if successful, of procuring an advantage for the party who has brought that action (see judgments of 13 July 2000, Parliament v Richard, C‑174/99 P, EU:C:2000:412, paragraph 33 and the case-law cited; of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 33 and the case-law cited; and of 28 September 2004, MCI v Commission, T‑310/00, EU:T:2004:275, paragraph 44 and the case-law cited).

54      In the present case, in order to assess whether the applicant has an interest in the annulment of the contested decision, it should be recalled, first of all, that under Article 2, points 31 and 32, of the 2009 decision, the applicant was ordered to pay, first, a fine of EUR 1 913 971 jointly and severally with ACW and CPA, and, second, a fine of EUR 1 432 229 jointly and severally with ACW.

55      Those fines sought to penalise the infringement in which, first, the undertaking, within the meaning of EU competition law, composed of the applicant, ACW and CPA, had participated from 30 September 1995 to 17 May 2000, and, second, the infringement in which the undertaking, within the meaning of EU competition law, composed of the applicant and ACW, had participated from 11 September 1991 to 29 September 1995.

56      Therefore, on account of the joint and several nature of the obligation to pay the fine set out therein, it is common ground that the Commission was entitled to require the applicant, pursuant to Article 2, point 31, of the 2009 decision, to pay a fine of EUR 1 913 971, and, pursuant to Article 2, point 32, of that decision, to pay the sum of EUR 1 432 229.

57      A finding of joint and several liability means that the Commission may require each co-debtor to pay in full the sum owed. 

58      The 2010 decision did not alter the scope of that obligation with regard to the applicant.

59      By the 2010 decision, the Commission merely intended to correct an error relating to the application of the 10% ceiling to ACW, a correction which it was required to make under Article 23(2) of Regulation No 1/2003.

60      With that in mind, by the 2010 decision, the Commission applied the 10% ceiling to the total amount of fines imposed on ACW and accordingly reduced that amount to the sum of EUR 1 086 129.

61      In making that reduction, the Commission treated the whole of that sum as the fine for which ACW was jointly and severally liable in respect of the infringement in which the applicant, ACW and CPA had participated from 30 September 1995 to 17 May 2000, the remainder of the fine, that is to say EUR 827 842, being the joint and several liability of the applicant and CPA only (Article 2, point 31(a) and (b), of the 2009 decision, as amended by the 2010 decision). 

62      In addition, the Commission ordered the applicant alone to pay a fine of EUR 1 432 229 in respect of the infringement in which it had participated with ACW, for the period from 11 September 1991 to 29 September 1995, as the total amount that could be claimed from ACW, after application of the 10% ceiling, was already covered by the first fine (Article 2, point 32, of the 2009 decision, as amended by the 2010 decision). 

63      Consequently, the applicant was in any event required to pay to the Commission exactly the same amounts as those which it had originally been ordered to pay by the 2009 decision.

64      On the other hand, the 2010 decision amended the determination from an external perspective of joint and several liability, as between the applicant, ACW and CPA, for payment of the amount of each of those fines. First, as regards the first of those fines, ACW and CPA are jointly and severally liable with the applicant for only EUR 1 086 129, and only CPA is jointly and severally liable with the applicant for the remaining sum, that is to say EUR 827 842. Second, as regards the second fine, the applicant alone was liable for the sum payable, that is to say EUR 1 432 229.

65      Furthermore, it is necessary to recall that the applicant has brought, in succession, an action against the 2009 decision, registered as Case T‑45/10, and an action against the 2010 decision, registered as Case T‑489/10. By two different judgments delivered on the same day, the Court rejected the first action and annulled the 2010 decision, upholding the plea alleging an infringement of the applicant’s rights of defence. 

66      While, as the Commission claims, the Court’s dismissal of the applicant’s action by the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), had the effect, in the absence of an appeal against that judgment, of making the Commission’s assessments final concerning the applicant’s liability as a result of its membership of a single undertaking during the infringement, within the meaning of EU competition law, composed of ACW, CPA and itself, that cannot be the case as regards the determination of the joint and several liability for the fines payable by those companies under Article 2, points 31 and 32, of the 2009 decision. That part of the 2009 decision was amended by the 2010 decision, after the action had been brought by the applicant in Case T‑45/10. 

67      Admittedly, as it was retroactive, the annulment of the 2010 decision in Case T‑189/10 had the effect of restoring the situation as it was prior to that decision, and therefore of re-enacting Article 2, points 31 and 32, of the 2009 decision, as originally worded. 

68      However, following that annulment, the Commission adopted the contested decision, whose operative part, which is exactly the same as that of the 2010 decision, has again amended Article 2, points 31 and 32, of the 2009 decision.

69      In that regard, in contrast to what the Commission contends, although not parties to the action brought by the applicant against the 2010 decision, ACW and CPA have had, as has the applicant, their respective legal situations affected by the annulment of the 2010 decision.

70      First, it should be noted that annulment judgments have, in EU law, the force of res judicata with absolute effect (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54).

71      Second, the legal situation of ACW and CPA with regard to the annulled provisions is connected to that of the applicant, in so far as those provisions are intended to determine the amount of the fines to be imposed on them in respect of the infringements for which they are jointly and severally liable, and the break-down of joint and several liability as between those companies from an external perspective with regard to those fines (see, to that effect and by analogy, judgment of 10 April 2014, Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraphs, 41 to 52). 

72      Article 2, points 31 and 32, of the 2009 decision, as amended by the 2010 decision, altered the legal situations of the applicant, ACW and CPA by allocating the amount of fines differently from how they were allocated by those provisions in their original version.

73      The same applies to the operative part of the contested decision, which amended Article 2, points 31 and 32, of the 2009 decision, in terms identical to those of the 2010 decision. 

74      Moreover, in the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the Court ruled only on the infringement of the applicant’s rights of defence, and not the substantive legality of the 2010 decision. 

75      Thus, although Article 1 of that decision and Article 1 of the contested decision contain identical provisions, the present action may lead to an allocation of the amount of the fines provided for by those provisions that is more favourable to the applicant. 

76      In addition, the contested decision differs from the 2010 decision as it introduces an Article 2, relating to the determination of the starting point for payment of default interest, which, if annulled, could in itself procure an advantage for the applicant.

77      Consequently, the applicant has a legal interest in seeking the annulment of the contested decision and the claims made in the application for that purpose are therefore admissible.
 Substance

78      In support of its action, the applicant puts forward five pleas in law. 

79      The first plea alleges breach of the rules on limitation. The second plea alleges infringement of Article 266 TFEU and the rights of defence. The third plea alleges infringement of Article 23(2) and (3) of Regulation No 1/2003. The fourth plea alleges infringement of the principle of equal treatment and the fifth plea alleges misuse of power and failure to state reasons.

80      It is appropriate to examine, in the first place, the fourth plea.
 The fourth plea in law

81      By its fourth plea, the applicant alleges that the Commission has infringed the principle of equal treatment, on two grounds.

82      First, the applicant points out that, under the 2009 decision, it is in the same situation as ACW with regard to the periods of infringement. 

83      However, the Commission claims that the application of the 10% ceiling to ACW releases it from its liability for the period of infringement from 11 September 1991 to 29 September 1995.

84      Accordingly, the Commission should have extended to the applicant the benefit of a reduction in the amount of the fine following the application of the 10% ceiling to ACW’s turnover, if the applicant is not to be left solely liable for that period of infringement.

85      The applicant adds that the apportionment of the fine, as imposed by the contested decision, may affect, to its detriment, the final apportionment of the fine in proceedings before a national court, as it is not in a position to institute an action for recovery to claim the corresponding amount of the fine.

86      Second, the applicant observes that it has lost all joint and several co-debtors, in so far as the Commission reduced ACW’s part of the fine for which the applicant was jointly and severally liable with ACW by 100%, whereas it reduced the part of ACW’s fine for which the applicant was jointly and severally liable with ACW and CPA by only 43%.

87      That choice is advantageous for CPA, since it does not have to bear a higher share of the fine, unlike the applicant, which has been found liable for a higher share of the fine as both joint and several co-debtor and as sole debtor.

88      The applicant claims that the Commission should have applied the 10% ceiling proportionally to both fines, that is to say, to the fine which was imposed jointly and severally on the applicant, ACW and CPA, and to that which was imposed jointly and severally on the applicant and ACW.

89      Although such reapportionment was, admittedly, not possible since the 2010 decision had become final with regard to ACW and CPA, the fact remains that the Commission should have reduced the amount of the fine imposed on the applicant. 

90      In that regard, the applicant observes that such reapportionment does not affect the joint and several liability as between co-debtors, but rather the liability of those held jointly and severally liable vis-à-vis the Commission.

91      First of all, the Commission contends that the applicant’s reasoning is based on the incorrect premiss that ACW was exempted from liability for the fine in respect of the infringement period from 11 September 1991 to 29 September 1995. 

92      It submits that, in the contested decision, it determined the maximum amount of the fine for which each company forming a single undertaking within the meaning of Article 101 TFEU could be held jointly and severally liable. It observes that that maximum amount does not equate to a separate fine and does not correspond to a given period of participation in the infringement.

93      It also maintains that the infringement has been committed by an undertaking within the meaning of Article 101 TFEU. Therefore, the fine imposed on each company forming a single undertaking within the meaning of Article 101 TFEU does not reflect the participation of those companies in the infringement, but only the maximum amount that may, where appropriate, be claimed from them for the participation of the undertaking, within the meaning of Article 101 TFEU, in the infringement.

94      Furthermore, it states that, as a result of the reduction of the joint and several liability of ACW, the applicant is liable, not for the payment of an individual fine, but only to the Commission for the fine initially imposed on it jointly and severally with ACW.

95      Next, the Commission submits that the applicant has failed to demonstrate in what way reapportionment of the fine could have been more beneficial.

96      Lastly, the Commission calls on the applicant to bring an action before the competent national courts if it maintains that the reapportionment of the fine as between those held jointly and severally liable places a disproportionate burden on it.

97      In that regard, it should be recalled that the principle of equal treatment, which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way unless such treatment is objectively justified, is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (judgment of 11 July 2014, Sasol and Others v Commission, T‑541/08, EU:T:2014:628, paragraph 181).

98      In the present case, the applicant alleges two instances of unequal treatment. The first concerns the different treatment of its situation and that of ACW and the second concerns the different treatment of its situation and that of CPA.

99      As regards, first, the difference in treatment in relation to ACW, the applicant submits that it ought to have been exempted, as was ACW, from liability as a result of the application of the 10% ceiling to ACW.

100    However, it should be noted that the application of the 10% ceiling to ACW does not in any way exempt it from liability for its participation in the infringement.

101    Only the part of the fine that it was required to pay jointly and severally with, inter alia, the applicant has been reduced.

102    Additionally, the fine imposed on each company forming a single undertaking, within the meaning of Article 101 TFEU, does not reflect the participation of those companies in the infringement, but only the maximum amount that may, as the case may be, be claimed from them by the Commission for the participation of the undertaking, within the meaning of Article 101 TFEU, in the infringement.

103    Therefore, no unequal treatment can be established as between the applicant and ACW.

104    As regards, second, the difference in treatment in relation to CPA, the applicant argues that the change to the break-down of joint and several liability as between CPA, ACW and the applicant was made for the sole benefit of CPA, as the applicant is required to bear part of the joint fine on its own.

105    According to the applicant, the Commission could have allocated the reduction of the part of the fine which ACW was initially required to pay differently between those held jointly and severally liable for payment.

106    In that regard, as account must be taken not only of the fine imposed jointly and severally on ACW, CPA and the applicant, but also of the fine imposed jointly and severally on ACW and the applicant for the purposes of determining whether the parties concerned have been treated equally, it must be held that, in the present case, the Commission has failed to fulfil its obligations under the principle of equal treatment.

107    First, the applicant and CPA are in a comparable situation, in that they are both companies jointly and severally liable for payment of a fine with ACW.

108    Second, the Commission could certainly have arrived at a different determination of the part of the fine for which ACW and the applicant remained jointly and severally liable, in order to limit the part of the fine for which the latter could be solely liable.

109    This would have been the case, in particular, if the Commission had allocated the reduction of the amount of ACW’s fine proportionately in both cases of joint and several liability in question.

110    In that case, first, the total amount of the fines for which ACW could be liable vis-à-vis the Commission would not have exceeded 10% of its turnover and, second, that reduction would have been equally distributed between the fine imposed jointly and severally on ACW and the applicant and the fine imposed jointly and severally on the applicant, ACW and CPA.

111    Thus, by applying the reduction of the amount of the fine granted to ACW only to the fine jointly and severally imposed on the applicant, CPA and ACW, the Commission infringed the principle of equal treatment, without any objective justification.

112    Accordingly, the fourth plea must be upheld. 

113    Although that plea is such as to lead to the annulment of the contested decision in its entirety, it is appropriate, in the interests of the sound administration of justice, to examine the fifth plea, which concerns Article 2 of the contested decision, alleging misuse of power and failure to state reasons and which relates to the date by which the fines in question were due.
 The fifth plea in law

114    In the fifth plea, which comprises two parts, the applicant claims that Article 2 of the contested decision, which sets the date by which the fines were due at 10 May 2010, is vitiated by misuse of power and failure to state of reasons. 

115    First, according to the applicant, the obligation to pay the fines by 10 May 2010 at the latest is unlawful, on the grounds that, by that date, there was no legal basis to justify such an obligation and that it is, in any event, impossible to comply with such a time limit, which was set retroactively. Second, the applicant submits that the decision is contradictory with regard to its previous practice and that the Commission’s statement of reasons is inconsistent.

116    For its part, the Commission contests that line of argument. In addition to claiming that the reasons contained in the contested decision were adequate, it submits, in essence, that the applicant was required to pay the fines as soon as the 2009 decision was adopted and that setting the date by which the fines were payable three months after the adoption of the 2010 decision was to the applicant’s advantage.

117    As regards the first part of this plea, alleging, in essence, that the Commission acted ultra vires as it lacked a basis for setting the date on which the fines were payable at 10 May 2010, first, it should be recalled that, in accordance with settled case-law, the power conferred on the Commission covers the power to determine the date on which a fine is payable and that on which default interest begins to accrue, the power to set the rate of such interest and to determine the detailed arrangements for implementing its decision by requiring, where appropriate, the provision of a bank guarantee covering the principal amount of the fine imposed plus interest since, if the Commission had no such power, the advantage which undertakings might be able to derive from late payment of fines would weaken the effect of penalties imposed by the Commission when carrying out its task of ensuring that the rules on competition are applied (see judgment of 29 April 2015, Total and Elf Aquitaine v Commission, T‑470/11, EU:T:2015:241, paragraph 109 and the case-law cited). 

118    Second, the provisions of Article 299 TFEU, according to which measures, particularly those of the Commission which impose a pecuniary obligation, are to apply to decisions of that institution imposing a fine (see, to that effect, order of 12 March 2012, Universal v Commission, T‑42/11, not published, EU:T:2012:122, paragraph 29).

119    In the present case, in the first place, it should be noted that, according to recital 23 of the contested decision, first, the Commission maintains that the 2009 decision, confirmed by the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), remains the basis of the fines. 

120    Second, the Commission states that, in the letter giving notification of the 2010 decision, the fine was due within three months of that decision. The Commission therefore asserts implicitly that, in the contested decision, it was necessary to establish such a date. 

121    Third, the Commission observes that, although the applicant provided bank guarantees up to the date of the annulment of the 2010 decision, it has not replaced those guarantees, since that date, by new ones or by a provisional payment of the fine owed. It therefore concludes that default interest is owed by the applicant from the date when the fine was no longer covered by any guarantee, namely 15 July 2015, the date of delivery of the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

122    In the second place, first, it should be noted that the 2010 decision has replaced the provisions of Article 2, points 31 and 32, of the 2009 decision, setting the amount of the fines for which the applicant, CPA and ACW were jointly and severally liable, with new provisions amending the total amount of the fine payable by ACW and the break-down of the joint and several liability as between the three companies. 

123    In other words, on the date of entry into force of the 2010 decision and on which notification of that decision was given, the provisions of Article 2, points 31 and 32, of the 2009 decision in their initial version were no longer applicable and could not be relied on as a basis for determining the date on which the fines in question were payable. Only the date of receipt of the notification of the 2010 decision, which from that point forward constituted the legal basis for the obligation to pay those fines, could serve as a starting point for such a time limit.

124    Second, in so far as it concerned the applicant, the 2010 decision was annulled by the Court in the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), with the result that, as the applicant argues, in essence, that decision cannot serve as the legal basis for both the applicant’s obligation to pay the fines in question and the determination of the date on which they were payable. 

125    It is true, as was pointed out in paragraph 67 above, that that annulment had the effect of reviving the original version of Article 2, points 31 and 32, of the 2009 decision. However, that version was again replaced by that imposed by Article 1 of the contested decision. 

126    Thus, it must be held that the obligation to pay the fines arises only from Article 1 of the contested decision and that the time limit for payment of those fines could be determined only from the date of receipt of notification of that decision.

127    It follows that the first part of the fifth plea must be upheld, without it being necessary to examine the second part, and that Article 2 of the contested decision must be annulled on that ground.

128    It follows from all of the foregoing that, without it being necessary to examine the other pleas raised in the action, the contested decision must be annulled in its entirety. Since the claims seeking variation of the contested decision were made solely in the alternative, there is no need to examine them.
 Costs

129    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs. 
On those grounds,
THE GENERAL COURT (Fifth Chamber),
hereby:
1.      Annuls Commission Decision C(2016) 3920 final of 29 June 2016 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);

2.      Orders the European Commission to pay the costs.

Gratsias

Labucka

Ulloa Rubio

Delivered in open court in Luxembourg on 18 October 2018.

E. Coulon 
 
      D. Gratsias

Registrar
 
President

*      Language of the case: English.