European Commission v Parker Hannifin Manufacturing Srl and Parker-Hannifin Corp.
Date: 2014-12-18
27. In that regard, it must be recalled that, under Article 83 of the Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular where it considers that it lacks sufficient information, where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the persons referred to in Article 23 of the Statute of the Court of Just ice of the European Union (judgment in Buono and Others  v Commission , C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraph 26 and the case-law cited).
29. In addition, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment in Buono and Others  v Commission , EU:C:2014:2284, paragraph 27 and the case-law cited).
39. It is settled case-law that EU competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, inter alia, Versalis  v Commission , C‑511/11, EU:C:2013:386, paragraph 51 and the case-law cited).
40. The Court has noted that, when an entity that has committed an infringement of the competition rules is subject to a legal or organisational change, this change does not necessarily create a new undertaking free of liability for the conduct of its predecessor that infringed the competition rules, when, from an economic point of view, the two entities are identical. If undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes, the objective of suppressing conduct that infringes the competition rules and preventing its reoccurrence by means of deterrent penalties would be jeopardised (judgment in ETI and Other , EU:C:2007:775, paragraphs 41 and 42 and the case-law cited).
41. The Court has thus held that where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred. In particular, applying penalties in this way is permissible where those entities have been under the control of the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (judgments in ETI and Others , EU:C:2007:775, paragraphs 48 and 49 and the case-law cited, and Versalis  v Commission , EU:C:2013:386, paragraph 52).
49. As regards, in the first place, the date on which structural links must have existed between the transferor and the transferee and the period during which those links must have existed in order for economic continuity to be possible, it must be noted that the Court has accepted that there may be economic continuity (i) in situations where the transfer of activities took place during the infringement period and structural links between the transferor and the transferee existed during that period (judgment in ETI and Others , EU:C:2007:775, paragraphs 45 and 50), and (ii) in situations where that transfer took place after the infringement had come to an end, provided that the structural links between the two entities existed at the time of that transfer (see, inter alia, judgment in Aalborg Portland and Others  v Commission , C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 59, 351, 356 and 357). The Court has never indicated that those links must subsist until the adoption of the decision penalising the infringement.
54. As regards, in the third place, the assertion in paragraph 116 of the judgment under appeal that, in the circumstances of the present case, the Commission should have attributed to the former operators liability for the infringement committed before the transfer of activities, that assertion forms part of the erroneous reasoning by which the General Court dismissed from the outset the existence of economic continuity. It is settled case-law that, where such a situation is established, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred (see, inter alia, judgment in Versalis  v Commission , EU:C:2013:386, points 52 to 54).
58. According to settled case-law, in the particular case in which a parent company holds all or almost all of the capital in a subsidiary which has committed an infringement of the European Union competition rules, there is a rebuttable presumption that that parent company in fact exercises a decisive influence over its subsidiary. In such a situation, it is sufficient for the Commission to prove that all or almost all of the capital in the subsidiary is held by the parent company in order to take the view that that presumption applies (see, inter alia, judgments in Akzo Nobel and Others  v Commission , C‑97/08 P, EU:C:2009:536, paragraph 60; Eni  v Commission , C‑508/11 P, EU:C:2013:289, paragraph 47 and the case-law cited; and Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraphs 105 to 111).
60. In so far as the respondents submit that, in ETI and Others  (EU:C:2007:775, paragraphs 50 and 51), the Court, while noting the existence of a structural link between the two entities in question — namely that they were owned by the same public authority — nevertheless left it to the national court to determine whether those entities had been ‘subject to the control’ of that au thority, it suffices to point out that it is natural, in the context of a reference for a preliminary ruling where the assessment of the facts is for the national court, that the Court left the responsibility of verifying the links between the entities at issue in that case, two of which were public bodies, to the national court.
62. However, it must be emphasised that the presumption of actual exercise of decisive influence is rebuttable and may be overturned by the production of sufficient evidence to show that the subsidiary acts independently on the market. In order to do so, it is for the entities concerned to adduce any factor relating to the economic, organisational and legal links between the subsidiary in question and the parent company that they consider to be capable of demonstrating that the subsidiary determined its conduct on the market independently and that those two entities therefore did not constitute a single economic entity (see, inter alia, Elf Aquitaine  v Commission , C‑521/09 P, EU:C:2011:620, paragraphs 56, 58 and 65 and the case-law cited).
74. As regards judicial review of Commission decisions imposing a fine for infringement of the competition rules, the review of legality is supplemented by the unlimited jurisdiction which Article 31 of Regulation No 1/2003 confers on the Courts of the European Union. Under that jurisdiction, the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, may substitute their own appraisal for the Commission’s and, consequently, cancel, reduce or increase the fine or penalty payment imposed (see, inter alia, judgment in KME Germany and Others  v Commission , C‑389/10 P, EU:C:2011:816, paragraph 130 and the case-law cited).
75. In order to satisfy the requirements, for the purpose of Article 47 of the Charter of Fundamental Rights of the European Union, of conducting a review exercising its powers of unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 TFEU and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (judgment in Telefónica and Telefónica de España  v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 200).
76.  However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings are inter partes . It is, in principle, for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (see, inter alia, Telefónica and Telefónica de España v Commission , EU:C:2014:2062, paragraph 213 and the case-law cited).
77. In addition, as the Advocate General pointed out in point 113 of his Opinion, the General Court is bound, when exercising its unlimited jurisdiction, by certain requirements. Those requirements include the duty to state reasons, by which it is bound in accordance with Article 36 of the Statute of the Court, applicable to the General Court under the first paragraph of Article 53 of the Statute, and the principle of equal treatment. When the amount of the fine imposed on them is determined, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an infringement of the competition rules ( Sarrió  v Commission , C‑291/98 P, EU:C:2000:631, paragraph 97).