ThyssenKrupp Stainless GmbH (C-65/02 P) and ThyssenKrupp Acciai speciali Terni SpA (C-73/02 P) v Commission of the European Communities.
Date: 2005-07-14
41. Moreover, it must be borne in mind that, according to settled case-law, the principle of the protection of legitimate expectations may not be relied upon by an undertaking which has committed a manifest infringement of the rules in force (Case C‑96/89 Commission v Netherlands  [1991] ECR I‑2461, paragraph 30). Accordingly, as the Advocate General correctly observed in point 112 of his Opinion, an undertaking which deliberately engages in anti-competitive conduct therefore has no right to allege a breach of that principle on the pretext that the Commission did not clearly inform it that its conduct constituted an infringement.
49. According to the judgment in Case 374/87 Orkem  v Commission  [1989] ECR 3283, paragraphs 34 and 35, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.
50. However, while the Commission may not compel an undertaking to admit its participation in an infringement, it is not thereby prevented from taking account, when fixing the amount of the fine, of the assistance given by that undertaking, of its own volition, in order to establish the existence of the infringement.
51. In that connection, it is clear from the judgment in Case C-298/98 P Finnboard  v Commission [2000] ECR I-10157, and in particular from paragraphs 56, 59 and 60 thereof, that the Commission may, for the purpose of fixing the amount of a fine, take account of the assistance given to it by the undertaking concerned to establish the existence of the infringement with less difficulty and, in particular, of the fact that an undertaking admitted its participation in the infringement. It may grant an undertaking which has assisted it in that way a significant reduction of the amount of its fine and grant a substantially lesser reduction to another undertaking which did no more than fail to deny the main factual allegations on which the Commission based its objections.
58. In that connection, it must be considered that the Court of First Instance was right, in paragraph 269 of the contested judgment, to reject AST’s argument that such an admission stemmed from the fact that it did not deny that its conduct might be described as a concerted practice. It was entirely proper that, in paragraph 270 of the contested judgment, the Court of First Instance drew a distinction between express admission of an infringement and a mere failure to deny it, which does not contribute to facilitating the Commission’s task of finding and bringing to an end infringements of the Community competition rules.
69. As regards AST’s argument based on the judgment in Stora Kopparbergs Bergslags v Commission , it need merely be pointed out that that judgment was annulled by the Court of Justice on the point relied on by AST. The Court of Justice held that the fact that a parent company could not have been unaware that the subsidiaries acquired by it had participated in a cartel does not suffice to impute to it responsibility for infringements committed by those companies before they were acquired (see Case C-286/98 P Stora Kopparbergs Bergslags  v Commission [2000] ECR I‑9925, paragraph 39).
73. The Commission contends that the Court of First Instance adopted an overly restrictive interpretation of the statement made on 23 July 1997 in which TKS agreed to be held responsible for the conduct attributed to Thyssen as from 1993, even though the latter’s business in the stainless steel flat products sector had not been transferred to it until 1 January 1995.
74. According to the Commission, the Court of First Instance distorted that statement by wrongly considering, in paragraph 64 of the contested judgment, that it could not be interpreted as implying, in addition to that acceptance of responsibility, a waiver by TKS of its right to be heard concerning Thyssen’s conduct.
75. The Commission considers that the Court of First Instance did not fully examine the documents which led to the statement of 23 July 1997 and that it distorted them.
76. It thus claims that, both in its response to the first statement of objections and in its letter of 17 December 1996, TKS submitted observations both in its own name and in that of Thyssen regarding the latter’s activities prior to 1 January 1995. Moreover, in its response to the second statement of objections, TKS refers to the letter of 17 December 1996 concerning those activities. Furthermore, Thyssen itself, in responding to both statements of objections, confined itself to referring to TKS’s observations and replied only as a matter of ‘utmost precaution’. Thyssen also maintained that the Commission was not entitled to pursue in parallel the procedure commenced against TKS and the procedure concerning it.
77. The Commission adds that the second statement of objections makes it clear that TKS was assuming responsibility for Thyssen’s conduct before the latter’s activities were transferred on 1 January 1995, in the same way as it had accepted responsibility for action taken by Krupp.
78. According to the Commission, the fact that the second statement of objections was sent to TKS and Thyssen separately and that those two undertakings responded separately is of no importance. Those undertakings replied only in a purely formal manner. Although doubts might nevertheless still have existed, they were dispelled by the fact that, after receiving the replies to that statement of objections from those undertakings, the Commission again asked TKS to confirm its acceptance of responsibility for Thyssen’s conduct since 1993.
79. The Commission also maintains that the Court of First Instance failed to take account of the exceptional circumstances allowing it to attribute responsibility for an infringement to a legal person other than the one that committed it. In the first place, TKS is the beneficiary and economic successor of Thyssen. Next, the conduct of those two undertakings was characterised by clear unity of action in relation to the part of Thyssen’s business that was taken over by TKS. Finally, the latter made statements on behalf of Thyssen during the administrative procedure. The Commission adds that the case-law supports its view that it was entitled to impose a fine on TKS in respect of Thyssen’s conduct.
Findings of the Court
81. In that connection, the Court of First Instance observed in paragraph 62 of the contested judgment that it was undisputed that, having regard to the statement of 23 July 1997, the Commission was, exceptionally, entitled to impute to TKS liability for the conduct of which Thyssen was accused, from December 1993 until transfer of the latter’s business to TKS on 1 January 1995.
82. However, the Court of First Instance rightly made clear, in paragraph 63 of the contested judgment, that, in so far as such a statement constitutes an exception to the principle that natural or legal persons may be penalised only for acts imputed to them individually, it must be interpreted strictly. The Court of First Instance correctly inferred therefrom that, unless he gives some indication to the contrary, the person making such a statement cannot be presumed to have waived the right to exercise his rights of defence.
85. It must be pointed out that, by its letter of 17 December 1996, TKS did not expressly indicate that it was also speaking on behalf of Thyssen. Moreover, TKS’s response to the first statement of objections was given in the name and on behalf of TKS. In that context, and even though TKS had also submitted in those documents observations on certain activities of Thyssen before the acquisition thereof in 1995, the statement of 23 July 1997 did not imply that TKS considered itself fully and sufficiently defended in that connection, and therefore that the Commission was entitled to impose on it a fine concerning Thyssen’s conduct without again hearing its views on that point.
86. Since the Commission sent separate statements of objections to TKS and Thyssen and those undertakings replied separately concerning the acts imputed to each of them, it was incumbent on the Commission to question and hear the views of TKS concerning Thyssen’s actions before deeming it to be responsible for the latter and imposing on it a fine for the infringement attributed to Thyssen.
88. As regards the alleged exceptional circumstances relied on by the Commission and mentioned in paragraph 79 of this judgment, it need merely be pointed out in the first place that TKS is not the economic successor of Thyssen, the latter having continued to exist as a separate legal person until the date of adoption of the contested decision. Secondly, such unity of action as may have characterised the conduct of Thyssen and of TKS after 1 January 1995 does not suffice to justify imputing to TKS conduct engaged in by Thyssen before that date, by reason of the principle referred to in paragraph 82 of the present judgment, according to which a legal person may be penalised only for acts imputed to it individually. As regards, finally, the statements allegedly made by TKS concerning Thyssen’s activities during the administrative procedure, it has already been stated in paragraphs 85 and 86 of the present judgment that they do not enable liability for Thyssen’s conduct prior to that date to be attributed to TKS.
92. In that connection, it must be stated that the Court of First Instance was right to hold, in paragraphs 55 and 56 of the contested judgment, that respect for the rights of the defence in any proceedings liable to lead to penalties constitutes a fundamental principle upheld by the first paragraph of Article 36 of the ECSC Treaty. It correctly pointed out that proper observance of that principle requires that the undertaking concerned should have been given an opportunity, as early as the administrative procedure, duly to put forward its views as to the reality and relevance of the alleged facts and circumstances and on the documents relied on by the Commission in support of its allegations. The Court of First Instance made it clear, in paragraph 57 of the contested judgment, that in principle it is incumbent on the natural or legal person managing the undertaking concerned when the infringement was committed to answer for it even if, on the date of the adoption of the decision finding the infringement, the running of the undertaking has become the responsibility of another person. It must be added, in the same sense, that in view of its importance, the statement objections must unequivocally identify the legal persons upon whom a fine is likely to be imposed and be addressed to the latter (see, in particular, Case C‑176/99 P ARBED  v Commission  [2003] ECR I‑10687, paragraph 21).
96. It must be added that the case-law to which the Commission refers, namely the judgment of the Court of First Instance in ARBED v Commission  and the judgment of the Court of Justice in Compagnie maritime belge transports and Others v Commission , both cited above, provides no support for the reasoning in support of which it is invoked whatsoever. Indeed, the judgment of the Court of First Instance was set aside by the Court of Justice on appeal. The Court of Justice, referring in particular to the abovementioned judgment in Compagnie maritime belge transports and Others v Commission , thus held that the Court of First Instance had been wrong to conclude that the lack of a statement of objections addressed to ARBED SA by the Commission, even though the latter had imposed a fine on it for conduct of its subsidiary TradeARBED SA, was not such as to entail annulment of the Commission’s decision for breach of the rights of the defence (see ARBED  v Commission , paragraph 24).