Metsä-Serla Oyj, UPM-Kymmene Oyj, Tamrock Oy and Kyro Oyj Abp v Commission of the European Communities.
Date: 2000-11-16
26 That means, as the Court of First Instance held in paragraph 44 of the contested judgment, that Finnboard was held directly responsible for the infringement of Article 85(1) of the Treaty. However, as the Commission took the view that Finnboard had acted on behalf of and in the interest of the appellants, so that its anti-competitive conduct could be imputed to them, each of the appellants was declared jointly and severally liable for payment of part of the fine.
27 In paragraphs 45 to 59 of the contested judgment the Court of First Instance examined whether, and confirmed that, the conduct of Finnboard could be attributed to the appellants. The reasoning following by the Court of First Instance in that regard cannot be regarded as defective, since it is settled case-law that the anti-competitive conduct of an undertaking can be attributed to another undertaking where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them (see, inter alia, AEG v Commission, cited above, paragraph 49).
28 In those circumstances, the interpretation by the Court of First Instance of Article 15(2) of Regulation No 17 cannot be regarded as contrary to the principle of legality, because the appellants, to which the anti-competitive actions of Finnboard were attributed, received a fine under that article for an infringement which, as a result of that attribution of liability, they themselves are deemed to have committed. That explains why, contrary to the appellants' submissions, the circumstances peculiar to them were taken into consideration by the Commission, as the Court of First Instance moreover found in paragraph 10 of the contested judgment. It also explains why the appellants were addressees of the statement of objections, and it has not been established that they were unable to defend themselves against those objections.
30 Lastly, as regards the question whether the conditions for attributing liability were in fact satisfied in the present case, the examination of that question, which is based on an assessment of the facts, cannot as such be contested in appeal proceedings.
34 It need merely be observed in that regard that the appellants' line of argument is based on an erroneous premiss, namely that no infringement was found to have been committed by them and no fine imposed on them individually. To the contrary, it is clear from paragraphs 27 to 30 of this judgment that the appellants were held individually liable for an infringement which they are deemed to have committed themselves on account of their legal and economic links with Finnboard and by which they were able to determine Finnboard's conduct on the market.
37 Conclusions of that kind are based on a series of findings of fact which cannot be questioned in appeal proceedings, save where there is a distortion of the clear sense of the evidence or infringement of general principles and procedural rules applicable in regard to the burden of proof and the taking of evidence, matters which the appellants have not sought to establish.