ArcelorMittal Luxembourg SA v European Commission (C-201/09 P) and European Commission v ArcelorMittal Luxembourg SA and Others (C-216/09 P).
Date: 2011-03-29
41. Under Article 61 of the Rules of Procedure, the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of a point which has not been argued by the parties (see Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraph 31 and the case-law cited).
63. Those findings are not vitiated by any error of law. It follows from the case-law that, in accordance with a principle common to the legal systems of the Member States whose origins may be traced back to Roman law, when legislation is amended, unless the legislature expresses a contrary intention, the continuity of the legal system must be ensured, and that that principle applies to amendments to the primary law of the European Union (see, to that effect, Klomp , paragraph 13).
66. In those circumstances, it would be contrary to the objectives and the coherence of the Treaties and irreconcilable with the continuity of the legal order of the European Union if the Commission did not have jurisdiction to ensure the uniform application of the rules deriving from the ECSC Treaty which continue to produce effects even after the expiry of that treaty (see, to that effect, Lucchini , paragraph 41).
68. In particular, the principle of legal certainty requires that European Union rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (Case C‑345/06 Heinrich  [2009] ECR I‑1659, paragraph 44 and the case-law cited).
75. It follows from the case-law that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (see, to that effect, Case C‑269/97 Commission  v Council  [2000] ECR I‑2257, paragraph 45) and that procedural rules are generally held to apply from the time of their entry into force (see, to that effect, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others  [1981] ECR 2735, paragraph 9, and Case C‑201/04 Molenbergnatie  [2006] ECR I‑2049, paragraph 31).
78. In the third place, in so far as ARBED submits that the General Court did not explicitly deal with all its arguments, it must be recalled that, according to settled case-law, the General Court’s duty, under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice, to state reasons for its judgments does not require it 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 know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its powers of review (Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission  [2009] ECR I‑2665, paragraph 42, and order in Case C‑150/09 P Iride and Iride Energia  v Commission , paragraph 42).
95. It is settled case-law that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The Court has stated that in this context the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that when such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (Case C‑90/09 P General Química and Others  v Commission  [2011] ECR I‑0000, paragraphs 34 to 36 and the case-law cited).
96. The conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company, having regard especially to the economic, organisational and legal links between those two legal entities (Case C‑97/08 P Akzo Nobel and Others  v Commission  [2009] ECR I‑8237, paragraph 58 and the case-law cited).
97. In the particular case of a parent company having a 100% shareholding in a subsidiary which has infringed the Union’s rules on competition, the parent company is able to exercise decisive influence over the conduct of its subsidiary, and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of the subsidiary ( Akzo Nobel and Others  v Commission , paragraph 60 and the case-law cited).
98. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to avail itself of the presumption that the parent exercises decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market ( Akzo Nobel and Others  v Commission , paragraph 61 and the case-law cited).
99. While it is true that the Court referred, in paragraphs 28 and 29 of Stora Kopparbergs Bergslags  v Commission , not only to the fact that the parent company owned 100% of the capital of the subsidiary but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary and the fact that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which the General Court had based its reasoning, and not to make the application of the presumption referred to in paragraph 97 above subject to the production of additional evidence of the actual exercise of influence by the parent company ( Akzo Nobel and Others  v Commission , paragraph 62).
102. Moreover, the General Court noted in paragraphs 94 and 96 to 98 of the judgment under appeal that the Commission had found in the contested decision that it had not been shown, or even claimed, that TradeARBED determined its commercial policy independently of ARBED, and that further evidence had confirmed that ARBED had decisive influence over the conduct of TradeARBED and had in fact made use of that power.
103. In those circumstances, ARBED’s argument that the case-law on the attributability to the parent company of the conduct of a wholly-owned subsidiary was incorrectly applied and that the General Court substituted its own assessment for that of the Commission must be rejected.
118. As regards the argument that it was impossible to collect the evidence needed to rebut the presumption that TradeARBED’s conduct could be attributed to ARBED, and that proof of a negative had been required, the case-law states that it is for an undertaking which submits that the excessive length of the administrative procedure has had an impact on the exercise of its rights of defence to demonstrate to the requisite legal standard that, because of that excessive length, it experienced difficulties in defending itself against the Commission’s allegations (see, to that effect, Case C‑113/04 P Technische Unie  v Commission  [2006] ECR I‑8831, paragraphs 60 and 61).
141. According to the case-law, it is the very fact that an action is pending before the General Court or the Court of Justice that justifies the suspension of the limitation period ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 153).
142. The Court has also held that, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the European Union judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Union judicature ( Commission  v AssiDomän Products and Others , paragraph 53).
143. Moreover, in accordance with Article 4(2) of Decision No 715/78 and Article 26(2) of Regulation No 1/2003, the limitation period for enforcement runs from the date on which the decision becomes final. The Court has explained that that limitation period therefore runs from expiry of the period for bringing an action against the decision on the infringement and the fine, if no action has been brought (see, by analogy, Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 137).
146. Moreover, both the wording of Article 3 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003 and the objectives pursued by those articles cover actions brought against those acts referred to in Article 2 of Decision No 715/78 and Article 25(3) of Regulation No 1/2003 against which actions lie, as well as actions brought against the Commission’s final decision (see, by analogy, Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 146).
148. Having regard to the foregoing, it must be concluded that the General Court did not err in law in holding that the suspension of the limitation period which Article 3 of Decision No 715/78 and Article 25(6) of Decision No 1/2003 attach to judicial proceedings takes effect only inter partes .
149. In the present case, as ProfilARBED and TradeARBED rightly submit, the initial decision was directed exclusively against ARBED and the judicial proceedings which led to the annulment of that decision in so far as it concerned ARBED were contested exclusively by ARBED and the Commission. It follows that no suspensive effect can be derived from those proceedings with respect to ProfilARBED or TradeARBED.