Autorità Garante della Concorrenza e del Mercato v Ente tabacchi italiani - ETI SpA and Others and Philip Morris Products SA and Others v Autorità Garante della Concorrenza e del Mercato and Others.
Date: 2007-12-11
19. Article 234 EC is an instrument of judicial cooperation, by means of which the Court provides national courts with the points of interpretation of Community law which may be helpful to them in assessing the effects of a provision of national law at issue in the disputes before them (Case C‑300/01 Salzmann  [2003]  ECR I‑4899, paragraph 28 and the case-law cited, and Case C‑448/01 EVN and Wienstrom  [2003]  I‑14527, paragraph 77).
20. When the reference for a preliminary ruling concerns the interpretation of Community law, the Court is as a rule bound to give a ruling ( Salzmann , paragraph 29, and Case C-119/05 Lucchini  [2007] ECR I-0000, paragraph 43).
21. In adjudicating on references for a preliminary ruling in which the rules of Community law whose interpretation was requested were applicable only because of a reference made to them by national law, the Court has held consistently that, where, in regulating purely internal situations, domestic legislation provides the same solutions as those adopted in Community law, it is clearly in the Community interest that, in order to avoid future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, in particular, Joined Cases C‑297/88 and C‑197/89 Dzodzi  [1990] ECR I‑3763, paragraph 37; Case C‑28/95 Leur-Bloem  [1997] ECR I‑4161, paragraph 32; Case  C‑1/99 Kofisa Italia  [2001] ECR I‑207, paragraph 32; Case C‑222/01 British American Tobacco [2004] ECR I‑4683, paragraph 40; and Case C‑3/04 Poseidon Chartering  [2006] ECR I‑2505, paragraph 16).
22. Neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the EC Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State ( Dzodzi , paragraph 36; Leur-Bloem , paragraph 25, and Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 19).
23. As regards the application of the abovementioned case-law to the present reference for a preliminary ruling, the fact remains that, in regulating purely internal situations, the provisions of Title I of Law No 287/90 provide the same solutions as those adopted in Community law.
24. Article 1(4) of Law No 287/90 provides that the provisions in Title I of that Law are to be interpreted in accordance with the principles laid down in Community competition law. Articles 2 and 3 of Law No 287/90, which fall under the same Title, reproduce mutatis mutandis  the wording of Articles 81 EC and 82 EC.
25. Furthermore, there is no suggestion in the wording  of Article 1(4) of Law No 287/90, the order for reference, or the other documents before the Court that the reference to Community law in that provision is subject to any condition whatsoever.
27. As regards the Commission’s argument that the disputes in the main proceedings are governed exclusively by Titles II and VI of Law No 287/90, so that Article 1(4) of the same Law, which falls under Title I thereof, is not relevant, the fact remains that that assessment is not shared by the Consiglio di Stato, which expressly referred to Article 1(4) as a ground for its reference for a preliminary ruling. In this respect, it should be recalled that it is not for the Court to determine the accuracy of the legislative context which the national court is responsible for defining ( Salzmann , paragraph 31; Case C‑213/04 Burtscher  [2005] ECR I‑10309, paragraph 35; and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I-0000, paragraph 22).
38. It is apparent from the case-law that Community competition law  refers to the activities of undertakings (Joined Cases 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 Aalborg Portland and Others v Commission  [2004] ECR I-123, paragraph 59) and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, in particular, Joined Cases C‑189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission  [2005] ECR I-5425, paragraph 112; Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I-289, paragraph 107; and Case C-205/03 P FENIN v Commission  [2006] ECR I-6295, paragraph 25).
39. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑49/92 P Commission  v Anic Partecipazioni  [1999] ECR I‑4125, paragraph 145, and Case C‑279/98 P Cascades  v Commission  [2000] ECR I‑9693, paragraph 78).
40. As to the circumstances in which an entity that is not responsible for the infringement can nevertheless be penalised for that infringement, it must be held first that this situation arises if the entity that has committed the infringement has ceased to exist, either in law (see, to that effect, Commission  v Anic Partecipazioni , paragraph 145) or economically. With regard to the latter, it is worth noting that a penalty imposed on an undertaking that continues to exist in law, but has ceased economic activity, is likely to have no deterrent effect.
41. Next, it must be noted that if no possibility of imposing a penalty on an entity other than the one which committed the infringement were foreseen, undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes. This would jeopardise the objective of suppressing conduct that infringes the competition rules and preventing its reoccurrence by means of deterrent penalties (Case 41/69 ACF Chemiefarma  v Commission  [1970] ECR 661, paragraph 173; Case C‑289/04 P Showa Denko  v Commission  [2006] ECR I‑5859, paragraph 61; and Case C‑76/06 P Britannia Alloys & Chemicals v Commission  [2007] ECR I-0000, paragraph 22).
42. Consequently, as the Court has already held, when an entity that has committed an infringement of the competition rules is subject to a legal or organisational change, this change does not necessarily create a new undertaking free of liability for the conduct of its predecessor that infringed the competition rules, when, from an economic point of view, the two are identical (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink  v Commission [1984] ECR 1679, paragraph 9, and Aalborg Portland and Others  v Commission , paragraph 59).
44. The fact that the decision to transfer an activity is taken not by individuals, but by the legislature in view of a privatisation, is equally irrelevant. Measures to restructure or reorganise undertakings adopted by the authorities of a Member State cannot have the effect, lawfully, of compromising the effectiveness of Community competition law (see, to that effect, Case C‑415/03 Commission  v Greece  [2005] ECR I‑3875, paragraphs 33 and 34).
45. In the main proceedings, it is apparent from the order for reference and the documents before the Court that ETI continued AAMS’ economic activities on the market affected by the cartel. In those circumstances, even though AAMS continued to exist as an economic operator on other markets, ETI could be regarded – for the purposes of the procedure relating to the cartel on the sale price of cigarettes – as the economic successor of AAMS.
48. In this respect, it must be recalled that, where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred (see, to that effect, Aalborg Portland and Others  v Commission , paragraphs 355 to 358).
49. In particular, applying penalties in this way is permissible where those entities have been subject to control by the same person within the group and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (see, by analogy, Case C-294/98 P Metsä-Serla and Others  v Commission  [2000] ECR I-10065, paragraphs 26 and 27, and Dansk Rørindustri and Others  v Commission , paragraph 117).
50. In the main proceedings, it is not disputed that at the time of their infringing conduct, AAMS and ETI were owned by the same public entity, namely the Ministry of the Economy and Finance.
51. It is for the Consiglio di Stato to determine whether, by participating in the cartel on the sale price of cigarettes, AAMS and ETI were subject to the control of that public entity. If that were the case, it would have to be concluded that the principle of personal responsibility does not preclude the penalty for the infringement commenced by AAMS and continued by ETI from being imposed in its entirety on ETI.