European Commission v GEA Group AG.
Date: 2020-11-25
36


Pursuant to the third paragraph of Article 56 of the Statute of the Court of Justice of the European Union, with the exception of cases relating to disputes between the Union and its servants, an appeal may be brought by Member States and institutions of the Union even if they did not intervene in the proceedings before the General Court. Whether or not they were parties to the case at first instance, the institutions of the Union do not, therefore, have to show interest in order to bring an appeal against a judgment of the General Court (judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 171).
37


It is open to the Commission to assess the expediency of bringing an appeal against a decision of the General Court, and it is not for the Court of Justice to review the choices made in this regard by the Commission (see, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 172).
42


According to the settled case-law of the Court of Justice, the obligation incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review on appeal (judgment of 14 September 2016, Trafilerie Meridionali v Commission, C‑519/15 P, EU:C:2016:682, paragraph 41).
58


As a preliminary point, it must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 24 September 2020, Prysmian and Prysmian Cavi e Sistemi v Commission, C‑601/18 P, EU:C:2020:751, paragraph 101 and the case-law cited). The Commission is required to observe that principle when exercising its power under Article 23(2) of Regulation No 1/2003 to impose a fine on undertakings which have infringed the EU competition rules and determines the amount of the fine (see, to that effect, judgment of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraph 63 and the case-law cited).
59


That being said, where a number of legal persons may be held personally liable for participation in an infringement of the EU competition rules because they form part of a single undertaking responsible for the infringement, the Commission has the power, under that provision, to impose a fine for which those persons are jointly and severally liable (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 120).
60


However, when it decides to exercise that power to impose penalties, the Commission is not free to determine how joint and several liability is to be imposed from an external perspective or, in particular, the amount of the fine in respect of which it may demand full payment by each of those held jointly and severally liable (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 121).
61


As the EU law concept of joint and several liability for payment of a fine is merely the manifestation of an ipso jure legal effect of the concept of an ‘undertaking’, the determination of the amount of the fine in respect of which the Commission may demand payment in full by each of those held jointly and severally liable derives, in any individual case, from the application of that concept of an undertaking (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 122).
62


In that regard, the authors of the Treaties chose to use the concept of an undertaking to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to Articles 81 and 82 EC, not other concepts such as the concept of a company or firm or of a legal person (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 123).
63


Moreover, the European Union legislature used that concept of an undertaking in Article 23(2) of Regulation No 1/2003 to define the entity on which the Commission may impose a fine in order to penalise an infringement of the European Union’s rules on competition (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 124).
64


The Court of Justice has consistently held that, for the purposes of EU competition law, the concept of an ‘undertaking’ covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed. That concept must be understood as covering an economic unit, even if, from a legal perspective, that unit is made up of a number of natural or legal persons (judgments of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 125, and of 27 April 2017, Akzo Nobel and Akzo Nobel Chemicals v Commission, C‑516/15 P, EU:C:2017:314, paragraphs 47 and 48).
65


Where, in accordance with Article 23(2) of Regulation No 1/2003, the Commission has the possibility of holding jointly and severally liable for payment of a fine a number of legal persons forming part of one and the same undertaking that is responsible for the infringement, the Commission’s determination of the amount of that fine – in so far as it is based, in any particular case, on the concept of an undertaking, which is a concept of EU law – is subject to certain limitations, which require due account to be taken of the characteristics of the undertaking concerned, as constituted during the period in which the infringement was committed (judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 51).
75


In that regard, where two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking within the meaning of Article 81 EC on the date on which a decision imposing a fine on them is adopted, they are entitled to have the 10% ceiling applied individually (see, to that effect, judgment of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraph 57).
77


Those particular circumstances led the Commission to calculate separately the ceiling on the basis of the turnover obtained in the business year preceding the adoption of the decision at issue (see, by analogy, judgment of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraph 67).
81


In that context, GEA cannot reasonably claim that there was an infringement of the principle of equal treatment which was to its detriment. In that regard, it is sufficient to note that a breach of that principle cannot be identified in a situation such as that at issue where a subsidiary which, on the date of adoption of a decision imposing a fine on the single undertaking to which it belonged, no longer forms part of that single undertaking, is entitled to have the ceiling of 10% of turnover applied to it individually. Those specific circumstances do not allow it to be concluded that the companies concerned were in comparable situations (see, to that effect, judgment of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraph 68).