YKK Corporation and Others v European Commission.
Date: 2014-09-04
26. That analysis is consistent with the case-law of the Court to the effect that the actual impact of the infringement on the market is not a decisive criterion for the determination of the amount of fines. In particular, factors relating to the intentional aspect of the infringement may be more significant than those relating to its effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing (see the judgments in Thyssen Stahl  v Commission , C‑194/99 P, EU:C:2003:527, paragraph 118; Prym and Prym Consumer  v Commission , C‑534/07 P, EU:C:2009:505, paragraph 96; and Carbone-Lorraine  v Commission , C‑554/08 P, EU:C:2009:702, paragraph 44).
29. In so far as the appellants complain that the judgment under appeal did not find fault with the allegedly disproportionate nature of the starting amount of the fine because of the tripartite cooperation’s absence of impact on the market, suffice it to state that it is clear from settled case-law that it is the task of the General Court to examine whether the amount of a fine is appropriate and, as a general rule, it is not the task of the Court, when it rules on questions of law in an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements by them of European Union law (see the judgments in SGL Carbon  v Commission , C‑328/05 P, EU:C:2007:277, paragraph 98, and Quinn Barlo and Others  v Commission , C‑70/12 P, EU:C:2013:351, paragraph 57 and case-law cited).
40. In accordance with the Court’s settled case-law, the cooperation of an undertaking with the Commission may justify a reduction of the fine under the 1996 Leniency Notice only if it actually allows the Commission to achieve its task of establishing the existence of an infringement and putting an end to it (see, to that effect, SGL Carbon  v Commissio n, EU:C:2007:277, paragraph 83 and case-law cited). It should further be borne in mind that the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking ( SGL Carbon  v Commission , EU:C:2007:277, paragraph 88).
58. In that regard, first, the wording of the second subparagraph of Article 23(2) of Regulation No 1/2003 is clear in so far as it imposes the requirement that, ‘[f]or each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year’.
59. Yet the concept of an ‘undertaking participating in the infringement’ for the purposes of that provision must necessarily be the same as for the application of Article 81 EC, since that concept cannot be capable of differing interpretations for the purposes of attribution of responsibility for the infringement and for the purposes of application of the 10% upper limit.
60. Accordingly, where, as in this case, an undertaking regarded by the Commission as responsible for an infringement of Article 81 EC is acquired by another undertaking within which it retains, as a subsidiary, the status of a distinct economic entity, the Commission must take account of the specific turnover of each of those economic entities in order to apply to them, where necessary, the 10% upper limit.
63. It must be observed, in that regard, that the objective sought by the establishment, in Article 23(2), of an upper limit of 10% of the turnover of each undertaking participating in an infringement is, inter alia, to ensure that the imposition of a fine higher in amount that that ceiling should not exceed the capacity of an undertaking to make payment at the time when it is identified as responsible for the infringement and a financial penalty is imposed on it by the Commission.
64. The finding in the preceding paragraph is confirmed by the second subparagraph of Article 23(2) of Regulation No 1/2003 which requires, as regards the 10% upper limit, that it should be calculated on the basis of the turnover in the business year preceding the Commission decision imposing a penalty for an infringement. Such a requirement is fully respected where, as in this case, that ceiling is determined solely on the basis of the turnover of the subsidiary, in respect of the fine which is imposed exclusively on it, in relation to the period prior to its acquisition by the parent company, which the appellants do not dispute in this appeal. It follows that, in such circumstances, the structural changes in the undertaking responsible as an economic entity are in fact taken into account in the calculation of the fine.
65. Likewise, the Commission’s argument that a single fine should have been imposed in respect of the period of the infringement cannot be accepted. As the Commission acknowledged at the hearing, as regards the part of the fine for which YKK Stocko was held to be exclusively liable, it would not be possible to enforce that part of the fine against the parent company if YKK Stocko were to default on payment. A company cannot be held to be responsible for infringements committed independently by its subsidiaries before the date of their acquisition, since the latter must themselves answer for their unlawful conduct prior to that acquisition, and the company which has acquired them cannot be held to be responsible (see the judgment in Cascades  v Commission , C‑279/98 P, EU:C:2000:626, paragraphs 77 to 79).
66. In addition, it is clear that the findings made in paragraphs 60 to 65 of this judgment are compatible with, first, the principle of proportionality and, second, the principle of personal responsibility and the principle that penalties must be specific to the individual, as stated in the case-law of the Court (the judgment in Britannia Alloys & Chemicals  v Commission , C‑76/06 P, EU:C:2007:326, paragraph 24, as regards the principle of proportionality; the judgments in General Química and Others  v Commission , C‑90/09 P, EU:C:2011:21, paragraphs 34 to 36; and ThyssenKrupp Nirosta  v Commission , C‑352/09 P, EU:C:2011:191, paragraph 143, as regards the principle of personal responsibility and the principle that penalties must be specific to the individual).
84. In that context, it should be recalled that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine. It is settled case-law that the fines imposed for infringements of Article 81 EC, as laid down in Article 23(2) of Regulation No 1/2003, are designed to penalise the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other economic operators from infringing, in future, the rules of European Union competition law. In that regard, the link between, on the one hand, undertakings’ size and overall resources and, on the other, the need to ensure that a fine has deterrent effect cannot be denied (the judgments in Showa Denko  v Commission , C‑289/04 P, EU:C:2006:431, paragraph 16, and Lafarge  v Commission , C‑413/08 P, EU:C:2010:346, paragraph 102).
85. Taking into consideration the size and overall resources of the undertaking in question is, primarily, justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the penalty must not be negligible in the light, particularly, of its financial capacity ( Lafarge  v Commission , EU:C:2010:346, paragraph 104).
86. It follows that, in order to impose a fine of an amount capable of deterring the undertakings concerned from infringing, in the future, European Union rules of competition, account must be taken of the size and overall resources of those undertakings at the time when the contested decision is adopted. Consequently, that fact that the size and overall resources of those undertakings may be smaller at an earlier stage of the infringement has no bearing on the determination of a deterrence multiplier (the judgment in Alliance One International  v Commission , C‑668/11 P, EU:C:2013:614, paragraph 64).