1.

On 16 November 2011 the General Court delivered three separate judgments ( 2 ) in which it dismissed separate applications seeking annulment of the Commission’s decision in Case COMP/38354 – Industrial Bags. ( 3 ) In that decision, the Commission found that there had been a serious, long-lasting infringement of what was at the time Article 81 EC (now Article 101 TFEU); and it imposed heavy fines on a number of subsidiary companies and their respective parents. This is one of the appeals from those judgments of the General Court. ( 4 )

2.

As well as raising novel questions of competition law, these appeals contain complaints that the General Court failed to adjudicate within a reasonable time on the applications brought before it. For that reason, it is clearly incumbent upon this Court to try to deal with the appeals expeditiously. In order to accommodate that requirement whilst respecting the need to allow appropriate time for translation, I have divided the issues that I am covering between the three Opinions in the following way.

3.

The key legislative provisions, together with a description of the cartel, the procedure leading to the Commission’s decision and the fines imposed, are to be found at points 6 to 34 of this Opinion. Because slightly different points are raised in each appeal as to the circumstances in which parent companies are, or are not, responsible for the actions of their wholly-owned subsidiaries, this question is discussed in all three Opinions. My analysis of the issues arising out of the claim that the General Court failed to adjudicate within a reasonable time (in particular, the criteria for determining whether there has been excessive delay and the possible remedies that can be given if that has happened) is contained in my Opinion in Groupe Gascogne, at points 70 to 150. ( 5 ) An examination of the detailed arguments advanced by each appellant in relation to (for example) adequacy of reasoning in the General Court’s judgments is, of course, to be found in the respective Opinions dealing with each appeal. ( 6 )

4.

This case gives rise to two important issues. The first is how fines should be determined where a wholly-owned subsidiary infringes the competition rules and that infringement is attributed to its parent company on the basis of joint and several liability.

5.

The second concerns the right to effective judicial protection as guaranteed by Article 47 of the Charter of Fundamental Rights (‘the Charter’) ( 7 ) and Articles 6 and 13 of the European Convention on Human Rights (‘the ECHR’). Here, the key questions are what is a ‘reasonable time’ for the purposes of Article 47 of the Charter and what constitutes the appropriate remedy should the General Court fail to adjudicate within that time.

6.

Article 6(1) ECHR provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. Article 13 thereof states that an effective remedy should be available where there is a breach of any rights guaranteed by the ECHR. In circumstances where the European Court of Human Rights (‘the Strasbourg Court’) finds, in the proceedings before that Court, that there has been an infringement of the ECHR, Article 41 provides that the Strasbourg Court can afford just satisfaction to the injured party (there is no express equivalent provision concerning this Court).

7.

Article 41 of the Charter guarantees that every person has the right to have his affairs handled impartially, fairly and within a reasonable time by the institutions, bodies and agencies of the Union.

8.

Article 47 of the Charter is entitled ‘Right to an effective remedy and to a fair trial’. It provides inter alia,

‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. …’

9.

Article 48 of the Charter guarantees the presumption of innocence and the rights of the defence. A similar guarantee is to be found in Article 6(2) ECHR.

10.

Article 51(1) of the Charter states:

‘The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.’

11.

Article 52(3) of the Charter states that the interpretation of rights guaranteed by the Charter shall be the same as the corresponding rights laid down in the ECHR.

12.

Article 19(1) TEU imposes a general duty on the Court of Justice as an institution (thus including this Court, the General Court and any specialised courts) to ‘ensure that in the interpretation and application of the Treaties the law is observed’. Thus, the Member States are required to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.

13.

Article 101 TFEU (formerly Article 81 EC) prohibits undertakings from participating in agreements, decisions and concerted practices which prevent, restrict, or distort competition within the internal market.

14.

Article 261 TFEU provides:

‘Regulations adopted jointly by the European Parliament and the Council, and by the Council, pursuant to the provisions of this Treaty, may give the Court of Justice unlimited jurisdiction with regard to the penalties provided for in such regulations.’

15.

More generally, Article 263 TFEU gives the Court of Justice jurisdiction to review the legality of acts of the institutions, including the Commission, ‘on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers’.

16.

Recitals 29, 33 and 37 in the preamble to Regulation No 1/2003 ( 8 ) state:

…

…

17.

Article 23(2) of Regulation No 1/2003 ( 9 ) provides that where an undertaking infringes Article 101 TFEU:

‘The Commission may by decision impose fines on undertakings and associations of undertakings … For 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’ (‘the 10% ceiling’).

18.

That provision is interpreted in a particular way by the EU judicature. The words ‘total turnover’ in Article 23(2) mean the worldwide turnover of a corporate group which is considered to be an ‘undertaking’ for the purposes of that provision, that is to say all its constituent parts taken together. ( 10 ) The words ‘preceding business year’ are construed as referring to the financial year preceding the Commission’s decision. ( 11 ) Accordingly, that year constitutes the reference point for calculating the 10% ceiling.

19.

Article 23(3) of Regulation No 1/2003 provides that ‘in fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’.

20.

Article 31 of Regulation No 1/2003 provides: ‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’

21.

Also applicable at the material time were the Commission’s 1998 Guidelines. ( 12 ) The preamble to those guidelines stated, inter alia:

‘The principles outlined here should ensure the transparency and impartiality of the Commission’s decisions, in the eyes of the undertakings and of the Court of Justice alike, while upholding the discretion which the Commission is granted under the relevant legislation to set fines within the limit of 10% of overall turnover. This discretion must, however, follow a coherent and non-discriminatory policy which is consistent with the objectives pursued in penalising infringements of the competition rules.

The new method of determining the amount of a fine will adhere to the following rules, which start from a basic amount that will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances.’

22.

Section 1 of the Commission’s 1998 Guidelines specified that the basic amount would be determined according to the gravity and duration of the infringement, the only criteria referred to in Article 23(2) of Regulation No 1/2003.

23.

The decision was addressed to 25 undertakings including Groupe Gascogne and its subsidiary Gascogne Sack Deutschland (known as Sachsa Verpackung GmbH at the time of the decision, hereinafter ‘GSD’ or ‘Gascogne Sack Deutschland’) and Kendrion. ( 13 )

24.

Gascogne Deutschland GmbH, a holding company, owns 90% of GSD. The remaining 10% is owned by Groupe Gascogne which owns 100% of the share capital of Gascogne Deutschland GmbH. GSD produces paper bags (which are not the subject of the decision) and plastic bags.

25.

In November 2001, the British Polythene Industries PLC group (‘BPI’) informed the Commission of the existence of a cartel in the industrial bags sector and expressed the wish to cooperate with the Commission under the 1996 Notice on immunity from fines and reduction of fines in cartel cases. ( 14 ) BPI provided the Commission with evidence that allowed it to carry out inspections in June 2002.

26.

The cartel functioned at two levels. At a global level it operated under the umbrella of Valveplast, a trade association open to membership from manufacturers that had a registered office and production facilities within the internal market. Members paid an annual membership fee.

27.

A number of subgroups, including regional groups, operated under the auspices of Valveplast or outside it: the Belgian subgroup, the Benelux subgroup, the German subgroup, the French subgroup, and the Teppema (or Netherlands) subgroup.

28.

The addressees of the decision participated in a single and continuous infringement of Article 101 TFEU, covering the Benelux, France, Germany and Spain, by which they agreed to fix prices of industrial bags, to set common models for price calculation, to allocate market shares and quotas, to allocate customers and deals, to proceed to concerted submissions to tenders and to exchange individualised information. The Commission found that the undertakings concerned had engaged in those anti-competitive practices for periods ranging from 3 to 20 years.

29.

The Commission considered that Groupe Gascogne’s interest in its subsidiary was not purely financial. By appointing officers of the group to sit on GSD’s supervisory body (the Beirat), Groupe Gascogne intended to exercise regular supervision of its subsidiary’s management. The Commission therefore decided that Groupe Gascogne should be held jointly and severally liable for the infringement committed by GSD from the point it acquired the subsidiary (1 January 1994) to the end of the anti-competitive practices in question (26 June 2002).

30.

The basic amount of the fine was determined according to the gravity and duration of the infringement. ( 15 )

31.

The Commission classified the gravity of the infringement as very serious. ( 16 )

32.

The Commission considered that it was appropriate to treat the undertakings involved in the cartel differently according to their relative importance in the market in the year 1996. Accordingly, it divided the undertakings into six categories. The largest producers were placed in the first category. GSD was placed in the sixth category. On that basis the Commission assessed the starting amount of GSD’s fine at EUR 5.5 million.

33.

Next the Commission took into account the duration of the infringement. For GSD, that was a period of 14 years and 4 months. The Commission therefore applied a percentage increase of 140% to the starting amount of the fine generating a figure of EUR 7.7 million. When added to the initial EUR 5.5 million, that resulted in a total fine of EUR 13.2 million.

34.

Thus, by virtue of Article 2(i) of the decision a fine of EUR 13.2 million was imposed on GSD. Of that amount Groupe Gascogne is liable for EUR 9.9 million. ( 17 ) That sum reflects the period of eight years and five months during which GSD was a wholly-owned subsidiary of Groupe Gascogne. Accordingly, GSD bears sole liability only for EUR 3.3 million.

35.

At first instance GSD ( 18 ) asked the General Court:

36.

GSD put forward three pleas in law in support of its first submission: (i), that the Commission had erred in considering that GSD had played an active role in the cartel; (ii), that the reasoning in the decision was insufficient inasmuch as the Commission had failed to set out adequate grounds in law to substantiate its claim that GSD had participated in a ‘Germany’ subgroup within the cartel; and (iii), that the Commission had breached Article 15 of Regulation No 17 by erroneously taking the view that GSD was not an independent undertaking and by deciding, also incorrectly, that Groupe Gascogne, as its parent company, was to be held jointly and severally liable for payment of the fine. GSD argued further that the Commission had erred in its determination of the portion of the fine attributable to GSD for the period of its participation in the infringement, which exceeded the 10% ceiling.

37.

In the alternative GSD argued that the fine should be reduced. It submitted that the Commission had failed correctly to assess the amount of the fine imposed; that it had infringed the principle of proportionality by misconstruing the seriousness and duration of the infringement; and that it had failed to take due account of mitigating circumstances and of GSD’s cooperation under the Leniency notice. ( 19 )

38.

At the hearing at first instance, GSD submitted that its rights of defence had been infringed by the application of the presumption of decisive influence, invoking Article 6 ECHR and Article 48 of the Charter. The General Court held that GSD’s submissions constituted a new plea in law, as they had not been included in the initial application. Referring to Article 44(1)(c) read together with Article 48(2) of its Rules of Procedure, the General Court therefore held that plea to be inadmissible.

39.

GSD puts forward four grounds of appeal.

40.

First, GSD submits that the General Court erred in law by failing to draw the conclusion that the entry into force of the EU Treaty on 1 December 2009, and in particular of Article 6 thereof, which confers the same legal value on the Charter as the Treaties, was a matter of law which came to light in the course of the procedure. ( 20 )

41.

Second, GSD submits that the General Court failed to state adequate reasons for its decision with regard to the application of Article 15 of Regulation No 17.

42.

Third, GSD submits that the General Court failed to exercise its powers of review and failed properly to examine the Commission’s reasoning concerning the impact of the infringement on the market.

43.

Fourth, in the alternative, GSD submits that the General Court infringed the principle of the right to a fair trial within a reasonable period of time enshrined in Article 6 ECHR and the principle of effective judicial protection. It argues that, in consequence, the judgment under appeal should be set aside or, in the alternative, that the amount of the fine should be reduced to take account of the financial consequences for GSD of the time in excess of a reasonable period which has elapsed.

44.

GSD submits that the change in the Charter’s legal value had direct consequences on the proceedings before the General Court. A combined reading of Articles 44(1)(c) and Article 48(2) of the General Court’s Rules of Procedure means that a party may not introduce a new plea in law or fact during the course of proceedings unless it is based upon matters of law or fact which come to light in the course of the procedure. GSD lodged a request for the reopening of the written procedure on 20 October 2010 and at the hearing it sought permission to make submissions concerning an alleged breach of Articles 48 and 52(1) of the Charter.

45.

The Commission submits, first, that this ground of appeal is too general and imprecise and second, that the Court has already held that the presumption of decisive influence is consistent with the presumption of innocence. Accordingly the Commission contends that the first ground of appeal is unfounded.

46.

It follows from Article 44(1)(c) read together with Article 48(2) of the General Court’s Rules of Procedure that GSD’s plea concerning Article 48 of the Charter interpreted in the light of Article 6 ECHR could be admissible only if it were based on matters of fact or law which came to light in the course of the procedure.

47.

It is evident from GSD’s request to re-open the written procedure that GSD considered that this plea had not been made in its initial application.

48.

An examination of that document confirms that to be the case.

49.

Furthermore, the General Court found that GSD’s plea did not constitute an amplification of the written submissions made in GSD’s application and that it was not closely linked to those submissions. I agree with both assessments.

50.

It is clear from paragraphs 85 to 95 of the judgment under appeal that the General Court nonetheless examined GSD’s substantive arguments concerning the presumption of decisive influence and the rights guaranteed by Article 48 of the Charter.

51.

Nothing prevented GSD from invoking the rights guaranteed by Article 48 of the Charter, interpreted in the light of Article 6 ECHR, during the written procedure. First, those rights already constituted part of the general principles of EU law. Second, although the Charter was not yet legally binding, the Court had already frequently drawn guidance from its provisions in delivering judgments prior to the entry into force of Article 6 TEU. ( 21 ) Furthermore, the Court has already held that the Lisbon Treaty does no more than codify the Charter. ( 22 )

52.

In paragraphs 91 to 95 of the judgment under appeal, the General Court interpreted Article 44(1)(c) and Article 48(2) of its Rules of Procedure. It is clear from paragraph 92 that it found that GSD raised new matters at the hearing. In paragraph 93 the General Court found that the change in status of the Charter did not give rise to a new matter of law insofar as the presumption of innocence was already guaranteed as a general principle of EU law. The General Court therefore rejected GSD’s plea.

53.

I add that, in any event, this Court has already recently considered and rejected submissions that the presumption of decisive influence is in essence a presumption of guilt and therefore incompatible with Article 48 of the Charter. ( 23 ) I agree with that decision. It seems to me that the presumption of decisive influence is not a presumption of guilt. It is a presumption that – for good or evil – the parent company holds the reins and is therefore responsible for the conduct of its wholly-owned subsidiary.

54.

GSD’s second ground of appeal is made in two parts.

55.

The first part of GSD’s second ground of appeal essentially concerns the meaning of the term ‘undertaking’, insofar as in the decision the Commission imputed the anti-competitive practices of GSD to Groupe Gascogne. GSD contends that the judgment under appeal contains insufficient reasoning as to why Groupe Gascogne was made jointly and severally liable for a fine imposed upon GSD under Article 23(2) of Regulation No 1/2003. GSD submits that the General Court failed to examine whether GSD had successfully rebutted the presumption that Groupe Gascogne exercised a decisive influence over GSD’s commercial policy.

56.

GSD relies on the following paragraphs of the judgment under appeal:

57.

GSD considers that the General Court failed to set out the reasons on which its judgment is based clearly and unequivocally. The General Court merely held, in paragraph 90 of the judgment under appeal, that the elements of fact provided by GSD in response to a request for information concerning whether it acted independently of Groupe Gascogne did not reverse the presumption of decisive influence. In so doing the General Court failed to assess the new facts adduced by GSD. It limited itself to asserting a principle, without setting out in a clear and unequivocal manner the grounds which led it to that conclusion.

58.

The Commission contends that the first part of the second ground should be rejected. It submits that the General Court is not obliged to reply in detail to every argument that is invoked before it, particularly where such points are not put in a sufficiently clear and precise manner. GSD did not put forward any new evidence to rebut the presumption of decisive influence. Its submissions were actually made in a different context, namely when contesting the application of Article 23(2) of Regulation No 1/2003, with regard to the 10% ceiling.

59.

It follows from settled case-law that the duty incumbent upon the General Court (under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union) to state reasons for its judgments does not require the General Court 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 the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal. ( 25 )

60.

First, it is clear that, in paragraphs 78 to 80 of the judgment under appeal, the General Court set out GSD’s arguments concerning the meaning of the term ‘undertaking’ for the purposes of Article 101 TFEU.

61.

Second, in paragraphs 85 to 87, the General Court set out the legal principles on which it based its assessment of (i) whether GSD and Groupe Gascogne comprised an undertaking, (ii) whether the presumption of decisive influence applied and (iii) whether GSD had rebutted the presumption that Groupe Gascogne had actually exercised such a decisive influence over its commercial policy.

62.

Third, it follows from paragraphs 88 and 89 of the judgment under appeal that in its assessment the General Court (i) took into account the fact that GSD was a wholly-owned subsidiary of Groupe Gascogne, (ii) considered that GSD had failed to rebut the presumption of decisive influence by demonstrating that it had in fact acted independently in determining its commercial policy, and (iii) rejected GSD’s submission that it was for the Commission to demonstrate that it had no such independence.

63.

It is true that the General Court did not say expressly that GSD bore the onus of proof in rebutting the presumption. However, that clearly formed the basis for the way in which paragraphs 89 and 90 of the contested judgment are reasoned.

64.

Insofar as those paragraphs of the judgment under appeal enable GSD to know the grounds on which the General Court based its reasoning and the Court to have sufficient material to exercise its powers of review within this appeal, that judgment is not vitiated by any failure to state reasons, contrary to GSD’s claim.

65.

In those circumstances, the first part of GSD’s second ground of appeal should be rejected.

66.

The second part of the second ground of appeal is put in the alternative. It concerns the interpretation of Article 23(2) of Regulation No 1/2003, which provides that the fine imposed on each undertaking participating in the infringement must not exceed 10% of its total turnover in the business year preceding the Commission’s decision.

67.

GSD contests the basis upon which the Commission calculated the fine for the period prior to its acquisition by Groupe Gascogne. The total fine is EUR 13.2 million and Groupe Gascogne is held jointly and severally liable for EUR 9.9 million of that amount. Before the General Court GSD argued that EUR 3.3 million (the difference between EUR 13.2 million and EUR 9.9 million), corresponds to the period from 9 February 1988 to 31 December 1993, before Groupe Gascogne acquired it. That sum exceeds the ceiling (of 10% of GSD’s turnover) laid down in Article 23(2) of Regulation No 1/2003.

68.

GSD relies upon the approach adopted by the Commission in Decision 2005/349/EC (the ‘Organic peroxides’ decision) ( 26 ) in support of its submission that where the period of time over which an infringement occurred is split between (i) the period during which the subsidiary alone is responsible for the infringement and (ii) the period during which the subsidiary and its parent company are considered to be jointly and severally liable, the Commission should take account only of the subsidiary’s turnover for the first period when applying the 10% ceiling. GSD submits that it follows from the judgment in Elf Aquitaine v Commission ( 27 ) that the General Court erred in law in confirming that the Commission could change its practice and decide not to apply the Organic peroxides decision without giving reasons. It is only in relation to the second period that the Commission can take account of the worldwide turnover of the group in calculating the 10% ceiling. However, that principle was not applied by the Commission here. At EUR 3.3 million, the fine was set at a level that exceeded 10% of GSD’s turnover (EUR 20 078 400) in the business year preceding the decision.

69.

The Commission contends that the second part of the second ground of appeal is inoperative. It points out, first, that GSD has not alleged that either it or the General Court erred when applying Article 23(2) of Regulation No 1/2003. The General Court’s judgment is therefore definitive on that point. Second, the Organic peroxides decision alone is not evidence of a ‘Commission practice’ applied to determining the 10% ceiling under Article 23(2) of Regulation No 1/2003. Third, the approach adopted in the Organic peroxides decision is wrong in law. Furthermore, the present matter is distinguishable from Elf Aquitaine. ( 28 )

70.

The General Court did not follow the Organic peroxides approach. It stated at paragraph 108 of the judgment under appeal:

‘Contrary to what the applicant claims, it follows from the above that, where a distinction is drawn between an initial period, in respect of which the subsidiary is held to be solely responsible for the infringement, and a second period, in respect of which the parent company is held jointly and severally liable for the infringement with its subsidiary, Article 23(2) of Regulation No 1/2003 does not require the Commission to establish whether the part of the fine in respect of which the parent company is not held to be jointly and severally liable for payment exceeds 10% of the turnover of the subsidiary on its own. The only purpose of the ceiling referred to in that provision is to prevent a fine which is excessive being imposed having regard to the overall size of the economic entity on the date of the decision’s adoption. The turnover of the company which is alone responsible for the infringement, as recorded at the date when the infringement was committed or when the fine was imposed is of limited relevance in that regard.’ ( 29 )

71.

How should the term ‘undertaking’ in Article 23(2) of Regulation No 1/2003 be interpreted where that entity has not remained the same during the course of the infringement? In determining the 10% ceiling for the period for which the subsidiary alone is held responsible, should the worldwide turnover of the group be taken into account or should reference be made solely to the subsidiary’s turnover in the business year preceding the Commission’s decision?

72.

In examining those issues it should be borne in mind that there is no dispute concerning the period of the infringement for which GSD has sole liability and the later period for which it has joint and several liability with Groupe Gascogne.

73.

In the absence of case-law from the Court, GSD refers to the Commission’s Organic peroxides decision. In that decision the Commission divided responsibility for the fine imposed on the parent and the subsidiary taking into account the period prior to the acquisition of the subsidiary (‘PC’) by the parent company (‘Laporte’), when PC alone was responsible for the infringement. Accordingly, in setting the 10% ceiling the Commission referred to PC’s turnover in the business year preceding the Organic peroxides decision, rather than the worldwide turnover of Laporte.

74.

As far as GSD’s argument concerning the Commission’s practice in previous decisions is concerned, it is settled law that the Commission’s practice in previous decisions does not serve as a legal framework for setting fines in competition matters, since the Commission enjoys a wide discretion in that area and, when exercising that discretion, is not bound by its past assessments. ( 30 ) The Commission was therefore not obliged to follow the approach in the Organic peroxides decision. Furthermore, I agree with the Commission that that sole decision does not constitute a practice.

75.

However, it does not follow that the Commission’s approach in the present matter was compatible with Article 23(2) of Regulation No 1/2003.

76.

At the hearing before this Court, the Commission stated that in light of two judgments of the General Court, Tokai Carbon and Others v Commission ( 31 ) and YKK and Others v Commission, ( 32 ) it considers that the approach it took in the Organic peroxides decision was incorrect and that the approach applied in the present matter is preferable.

77.

In my view, Tokai concerned a different situation. In Tokai the parent and the subsidiary were part of the same undertaking at the time of the infringement, but their relationship had changed at the reference point for calculating the 10% ceiling. ( 33 ) At that stage the parent was no longer responsible for its former subsidiary: they were sister companies. The two companies were held jointly and severally liable for the period of the infringement, but the decision was addressed separately to the former subsidiary and to the former parent and the 10% ceiling was applied to each addressee. ( 34 )

78.

YKK concerned a parent company (‘YKK’) and a wholly-owned subsidiary (‘YKK Stockco’) which were held to constitute the same undertaking at the date when the Commission’s decision was adopted. ( 35 ) By virtue of that decision YKK was held jointly and severally liable for the infringement committed by YKK Stockco. The infringement was committed over a period of 10 years. YKK Stockco was found to have participated in anti-competitive practices for a period of six years prior to its acquisition by YKK. The anti-competitive behaviour then continued over a further period of four years after the subsidiary became part of the YKK group. The Commission found YKK to be jointly and severally liable for the fine imposed on YKK Stockco for the period from which it became the sole owner of the subsidiary.

79.

YKK Stockco argued that in determining the 10% ceiling the Commission should have taken into account its sole turnover for the (six-year) period of the infringement for which it alone was wholly liable. Therefore, the worldwide turnover of the group should not have been the basis on which the 10% ceiling was calculated for that part of the fine. The General Court disagreed. It held that YKK Stockco and YKK were jointly and severally liable at the reference point for calculating the 10% ceiling and that the Commission was therefore correct in taking the worldwide turnover as a reference to calculate the 10% ceiling for the entire period of the infringement.

80.

The essence of the Commission’s position is that the Court should take account of the undertaking’s finances at the time of the decision, as a safeguard against the imposition of excessive fines set by reference to an undertaking’s financial position at the time the infringement occurs. ( 36 )

81.

It seems to me that the approach applied in the Organic peroxides decision is more consistent with the wording and objectives of Article 23(2) of Regulation No 1/2003 than the approach adopted in the present case.

82.

I am not aware of any case-law in which this Court has interpreted Article 23(2) of Regulation No 1/2003 in circumstances like the present. I approach the issue as follows.

83.

First, the second subparagraph of Article 23(2) of Regulation No 1/2003 states that ‘For each undertaking … participating in the infringement … the fine shall not exceed 10% of its worldwide turnover in the preceding business year.’ The General Court did not make an express finding itself, but implicitly accepted the Commission’s finding in the decision that GSD was wholly responsible for the infringement in the period before its acquisition by Groupe Gascogne. ( 37 ) Since GSD was the undertaking participating in the infringement during the period from 9 February 1988 to 1 January 1994, it alone appears to be the ‘undertaking’ that falls within Article 23(2) of Regulation No 1/2003 in relation to the infringement committed during that period.

84.

For the later period, from 1 January 1994 to 26 June 2002, the ‘undertaking’ participating in the infringement was Groupe Gascogne (by virtue of the presumption of decisive influence) as well as GSD (in actual fact). Accordingly, both companies are jointly and severally liable for that period.

85.

Second, where the identity of the perpetrator changes during the course of an infringement because the subsidiary is subsequently wholly acquired by a parent company, the word ‘undertaking’ in the second subparagraph of Article 23(2) of Regulation No 1/2003 is sufficiently wide to encompass such a ‘variable geometry’.

86.

Third, although the penalty concerns the subsidiary’s past actions, in setting the 10% ceiling Article 23(2) of Regulation No 1/2003 requires the reference point to be set at the time of the Commission decision. In that respect a subsidiary’s position is no different from that of any other undertaking insofar as the 10% ceiling is set by reference to turnover in the business year preceding the Commission’s decision. Accordingly, it is important to distinguish the subsidiary’s turnover from that of its parent; and the 10% ceiling applied to that subsidiary in respect of a fine imposed for a period prior to its acquisition by the parent should be determined by reference to its turnover alone.

87.

Fourth, such an interpretation seems to me more consistent with the objectives of Article 23(2) than the Commission’s approach. The purpose of the 10% ceiling is to protect an undertaking against excessive fines which could destroy it commercially. ( 38 ) Where a subsidiary is penalised for an infringement for which it is wholly liable, subject to an upper limit calculated on the basis of the worldwide turnover of an entire group, that is more likely to generate a higher figure (as 10% of the worldwide turnover of a corporate group will normally be greater than the 10% turnover of a single subsidiary). Thus, that method of calculation will result in the imposition of a higher fine than if the 10% ceiling were established by reference to the subsidiary’s sole turnover.

88.

In my view, the Commission’s approach therefore fails to guarantee – as the legislation intends – that excessive fines are not imposed.

89.

Finally, it seems reasonable to assume that, in circumstances like the present, the Commission divides up responsibility for the periods before and after acquisition by the parent company in order to reflect the principle of personal responsibility. ( 39 ) It is because the subsidiary’s anti-competitive behaviour during the earlier period was committed before it and the parent comprised the same undertaking that the parent company is not held jointly and severally liable for that period of the infringement. By analogy, however, it seems to me very difficult to justify taking account of the worldwide turnover of the group to determine the 10% ceiling in relation to a fine that the subsidiary alone must pay, imposed in respect of an infringement which the parent company did not itself commit and which is not attributed to it for the period in question.

90.

In my view the General Court therefore erred in its interpretation of Article 23(2) of Regulation No 1/2003 and the judgment under appeal is vitiated in that respect. It follows that I consider that the fine imposed on GSD in respect of the period from 9 February 1988 to 1 January 1994 should be capped at EUR 2 078 400 (10% of its turnover in the business year preceding the decision).

91.

By the third ground of appeal GSD challenges the judgment under appeal in that the General Court confirmed that the Commission correctly classified the infringement as very serious.

92.

GSD submits that the General Court failed to give adequate and coherent reasons in examining the reasoning in the decision concerning the actual impact of the infringement on the market. It argues that it is unable to establish from that decision whether the impact of the cartel on the market is shown by the criteria that the Commission put forward; or whether the Commission’s position is that the impact of the cartel is not measurable. GSD therefore submits that it is hindered in putting its defence because the case that it has to meet is unclear. The General Court erred in upholding the Commission’s reasoning in the decision insofar as the General Court stated that the impact of the cartel on the market was not measurable and yet accepted that the infringement was properly classified as very serious.

93.

The Commission considers, first, that GSD’s plea is inadmissible because it did not claim at first instance that it had encountered difficulties in understanding the decision; second, that the reasoning in the decision is sufficiently clear; third, that the infringement had an actual impact on the market, but that it is not possible to measure those effects; and fourth, that it is settled law that, in determining the amount of the fine, the issue of whether there is an actual impact on the market is an element that may be taken into account, but it is not a necessary requirement.

94.

Like the Commission, I regard the argument that the decision was inadequately reasoned as inadmissible in as much as it was not raised at first instance. However, it may assist the Court if I examine briefly the substantive elements of GSD’s plea.

95.

In accepting that the infringement was a very serious breach of Article 101 TFEU, and in endorsing the Commission’s decision to fix the basic amount of the fine without proof of actual impact on the market, did the General Court fail to examine the reasoning in the decision? And is the reasoning in the judgment under appeal coherent and adequate in that respect?

96.

GSD has failed to identify the specific paragraphs of that judgment which give rise to its complaint as to lack of reasoning.

97.

I consider that the General Court did not err in exercising its powers of review.

98.

Generally, it is correct that the actual impact of an infringement on the market is one criterion among others to take into account when determining the gravity of that infringement. Furthermore, that factor is relevant in assessing the gravity of an anti-competitive practice only where ‘actual impact on the market’ is in fact measurable. ( 40 )

99.

In order to determine the basic amount of a fine, it is necessary to take account of the duration of the infringement and of all the factors capable of affecting the assessment of its gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the anti-competitive practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union. ( 41 )

100.

It follows that the effect on the market of an anti-competitive practice is not, in itself, a conclusive criterion for assessing the basic amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to such effects, particularly where they relate to infringements which are intrinsically serious. ( 42 )

101.

The General Court considered the issue of the gravity of the infringement in stages, looking first at the actual impact that it had on the market and then at whether the Commission had applied different treatment to the cartel’s participants in its methodology for setting the fines. The latter point does not form part of the present appeal.

102.

As far as the actual impact on the market was concerned, GSD made the following submissions before the General Court. First, it claimed that, by deciding that it was not necessary to measure the impact of the infringement on the market, the Commission had failed to apply its 1998 Guidelines. Second, GSD relied on an earlier case, Degussa v Commission, ( 43 ) in which the General Court had held that, where the effects of an infringement on the market had only partially been demonstrated, the fine imposed by the Commission should be reduced. Third, GSD argued that the Commission should have taken into account that GSD was not involved in certain anti-competitive practices when considering the gravity of the infringement.

103.

The General Court examined each of GSD’s arguments. In paragraph 117 it stated: ( 44 )‘… the actual impact of the infringement on the market falls to be taken into account for the purposes of assessing the gravity of the infringement only when it is capable of being measured’.

104.

The General Court therefore held in paragraph 118: ‘The applicant’s argument that, in essence, the General Court should reduce the amount of the fine imposed by the Commission where the impact of the infringement on the market cannot be measured therefore cannot succeed.’

105.

The General Court went on to examine Degussa and concluded that it was distinguishable: ( 45 )

‘In that case, the General Court reduced the amount of the fine in order to reflect its finding that the Commission had taken no account of a number of factors indicating that the cartel had, in fact, had had no effect during a certain period. … Moreover, it was held in paragraphs 241 and 242 of that judgment that it had not been possible to demonstrate either the conclusion of any agreement on prices during that period or that an earlier agreement on prices had been implemented.’

106.

The General Court found that, by contrast: ( 46 )

‘In the present case, the Commission does not claim to be able to measure the impact of the infringement on the market nor has the applicant put forward any argument or presented any material that would tend to show that the cartel had not, in fact, had any effect and that, as a result, it had not had any impact on the market.’

107.

The General Court made a number of additional findings of fact concerning GSD’s participation in the cartel. Thus, it found GSD’s conduct, such as its participation in systems for exchanging information, ( 47 ) market sharing, ( 48 ) and price fixing, ( 49 ) to be intrinsically serious infringements of the competition rules.

108.

It is true that the General Court did not state expressly that the putting into effect of an anti-competitive practice is not, in itself, a conclusive criterion for assessing the basic amount of a fine. However, it follows from its overall assessment of the gravity of the infringement that its findings were not based solely on the general impact of the anti-competitive behaviour on the market. It rejected GSD’s arguments seeking a reduction in the basic amount of the fine. Furthermore, it found that GSD’s conduct was a relevant factor in assessing the gravity of the breach of the competition rules.

109.

Therefore, since the General Court assessed the decision in the light of the principles established in the Court’s case-law, ( 50 ) its reasoning in the judgment under appeal was sufficient.

110.

It follows that the first part of the third ground of appeal is unfounded.

111.

By the second part of the third ground of appeal, which is put forward in the alternative, GSD challenges the methodology applied by the Commission to determine the basic amount of the fine.

112.

GSD claims that where the Commission decides to take account of the actual impact of the infringement on the market, it must put forward specific, credible and adequate criteria by which to assess what actual influence the infringement may have had on competition in that market. Here, the Commission has not put forward any such criteria. It has simply deduced from the fact that the cartel was put into effect that it had an actual impact on the market. GSD submits that such a position is inconsistent with the Court’s case-law and that the General Court’s reasoning on this point was inadequate.

113.

The Commission considers that the second part of the third ground of appeal is inadmissible and inoperative for a number of reasons. First, GSD has not contested that the infringement did have an impact on the market. Second, GSD has not identified any specific paragraph of the judgment under appeal where it alleges that the General Court committed an error of law. Third, this part of the third ground of appeal is inoperative because it follows from recital 765 of the decision that the level of the fine was not determined by reference to the actual impact of the infringement on the market. Fourth, the basic amount of the fine was set according to factors other than the impact of the cartel on the market; it was based on the cartel’s collusive practices, the implementation of those practices and the size of the geographical area concerned.

114.

In its review of the Commission’s decision setting the basic amount of the fine, did the General Court give sufficient reasons for deciding not to reduce that amount, given that the Commission had not measured the impact of the cartel on the market, since it considered it not to be measurable?

115.

I consider that, in the judgment under appeal, the General Court has given its reasoning with sufficient clarity to enable the persons concerned to know the grounds on which it is based and the Court to have sufficient material to exercise its powers of review. ( 51 )

116.

The General Court took into account the fact that the Commission did not rely on establishing that the cartel had had an actual impact on the market. ( 52 ) The General Court also took account of other factors, such as the nature of GSD’s participation in the infringement, the nature of the anti-competitive practices and the size of the geographical area concerned. ( 53 )

117.

The General Court refers to the Commission’s 1998 Guidelines in paragraph 117 of its judgment and in so doing, it did not err in law. The General Court held in paragraph 118 of the judgment under appeal that application of the criterion of ‘actual impact on the market’ is optional. ( 54 ) It found, in relation to setting the basic amount of the fine, that that criterion was not measurable. It held that, in those circumstances, the Commission was not obliged to adduce additional elements to prove that there was an actual impact.

118.

Thus, the gravity of the infringement in the present case was assessed by reference to factors including GSD’s conduct and the size of the geographical market concerned. That is fully consistent with point 1 A of the Commission’s 1998 Guidelines and the Court’s case-law. ( 55 )

119.

The second part of the third ground of appeal is thus inoperative.

120.

It follows that the third ground of appeal should be rejected in its entirety.

121.

At the hearing before this Court, GSD made submissions concerning its current financial position, arguing that it was unable to pay the fine imposed by the decision. Equivalent submissions were not made at first instance.

122.

The legal basis on which those submissions were made is not clear, as no provisions of the Treaty, the Court’s Statute or its Rules of Procedure were cited in support.

123.

I consider that GSD’s submissions regarding its inability to pay are inadmissible for three reasons.

124.

First, appeals to this Court are restricted to points of law. Any assessment of whether GSD is unable to pay involves issues of fact which are not matters for this Court on appeal. Second, it is not open to the Court of Justice, when determining 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 of EU law. ( 56 ) Third, it is settled law that the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, ( 57 ) since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to market conditions. ( 58 )

125.

GSD states that, when it lodged its application before the General Court challenging the decision and the fine imposed thereby, it arranged a bank guarantee to cover payment of that fine and of any interest which might accrue thereon, pending the outcome of the proceedings at first instance. GSD claims that the length of those proceedings (five years and ten months) was excessive. ( 59 )

126.

GSD submits that the General Court infringed Article 47 of the Charter by failing to adjudicate within a reasonable time. Accordingly, GSD asks the Court to quash the judgment under appeal, or alternatively to reduce the amount of the fine imposed taking into account the financial burden that it has suffered as result of the breach of its fundamental right.

127.

The Commission submits first, that GSD’s plea is inadmissible since it failed to raise the issue of failure to adjudicate within a reasonable time at the hearing before the General Court. Second, the judgment under appeal should not be quashed in its entirety as GSD has not complained that its rights of defence have been infringed because the General Court failed to decide GSD’s case within a reasonable time. Third, even if the Court finds that the proceedings before the General Court were unduly lengthy, GSD has not suffered any material loss due to the excessive duration of those proceedings. Fourth, the appropriate remedy in such circumstances is for GSD to lodge a separate application for damages. Fifth, in the alternative, if the Court awards compensation in the appeal proceedings, any such award should be symbolic.

128.

As the Commission points out, GSD did not raise the issue of the General Court’s failure to hear its case within a reasonable time during the proceedings at first instance. That is not surprising. Although a claimant may (as Kendrion did) choose to raise the issue already at the hearing before the General Court, the overall length of proceedings at first instance cannot be known until the General Court delivers its judgment. A claimant might (for example) argue that the General Court took too long after the hearing to deliver its judgment and consequently that that period constitutes an additional element to be taken into account. ( 60 )

129.

Accordingly, a claimant may wish to take stock of his position only when the proceedings at first instance are complete. It seems to me that GSD took that approach here. If claimants were unable to do so because they were obliged to raise the matter at first instance (to avoid being precluded from doing so on appeal), they would not necessarily have all the relevant information at their disposal to be able to make such a decision. That might be prejudicial to their rights of defence. Thus, a claimant should be able to choose whether he wishes to put such a claim at first instance or raise it for the first time on appeal.

130.

I therefore consider that GSD is not precluded from raising for the first time on appeal before this Court the question whether the General Court failed to adjudicate within a reasonable time. ( 61 )

131.

In Baustahlgewebe ( 62 ) the Court stated that what constitutes a reasonable time should be assessed on a case by case basis. It applied the following criteria derived from the case-law of the Strasbourg Court: (i) the importance of the case for the person concerned, (ii) its complexity, (iii) the conduct of the party concerned and (iv) the conduct of the competent authorities (‘the Baustahlgewebe criteria’). ( 63 )

132.

In my Opinion in Groupe Gascogne, where I discuss this issue in depth, I have suggested that the Baustahlgewebe criteria should be refined. In particular I have suggested that, in order to decide whether a case has been heard within a reasonable time, it is more sensible to examine whether there were unjustified periods of inactivity in the General Court ( 64 ) than to focus on the overall duration of the proceedings from the date when the application was lodged to delivery of judgment.

133.

GSD lodged its application for annulment on 23 February 2006. The written procedure ended on 23 February 2007. On 23 September 2010, after a period of apparent inactivity of about three years and seven months, the Registry of the General Court informed the parties that the case had been allocated to the Fourth Chamber. On 20 October 2010 GSD requested the General Court to reopen the written procedure. ( 65 ) On 14 December 2010, GSD was informed that the case had been set down for hearing. The case was heard by the General Court on 2 February 2011 and judgment was delivered on 16 November of that year. The overall length of the proceedings at first instance was 5 years and 10 months, and there was a period of approximately 4 years between the end of the written procedure and the hearing.

134.

Applying the four Baustahlgewebe criteria, it is plain that, since GSD is subject to a substantial fine under the decision, the case is of importance to it. It is also clear that the action at first instance raised complex issues. I do not consider that the unreasonable length of the proceedings can be attributed to GSD’s conduct. It is true that on 20 October 2010, GSD requested the General Court to reopen the written procedure in order to raise arguments about the new, post-Lisbon status of the Charter (see points 46 to 53 above). However, it is clear from the fact that GSD was notified on 14 December 2010 that its case had been set down for hearing that that procedural incident had little or no effect on the overall duration of proceedings. The Court has not been provided with any information that explains or justifies the period of inactivity of three years and eight months between the end of the written procedure and GSD’s request to re-open the written procedure. In the absence of such evidence, it is clear to me that this case did not proceed within a reasonable time. As I have indicated in my Opinion in Groupe Gascogne, ( 66 ) I consider that (broadly speaking) this stage of the procedure might have taken up two years without that being characterised as ‘excessive’ delay in handling the case. It follows that – in round figures – this case took about a year and eight months longer at first instance at the General Court than it should have done.

135.

I therefore consider that GSD’s fundamental right to have its case heard by the General Court within a reasonable time has been infringed.

136.

It follows from my Opinion in Groupe Gascogne ( 67 ) that, where an infringement of Article 47 of the Charter is established, such a finding should not, on its own, lead to the judgment under appeal being set aside.

137.

Furthermore, as the Commission points out, GSD has not claimed that its rights of defence have been infringed as a result of that procedural irregularity.

138.

Therefore, I do not consider that the judgment under appeal should be set aside.

139.

GSD’s alternative plea seeking a reduction in the fine seems to me to be based upon the Court’s approach in Baustahlgewebe, ( 68 ) rather than presented as a separate claim for material loss and/or non-pecuniary damages.

140.

In the light of that plea I consider that, in the absence of any claim for material loss and/or non-pecuniary damage, a finding in the judgment itself to the effect that the General Court has infringed Article 47 of the Charter constitutes just satisfaction. ( 69 )

141.

I thus conclude that, to the extent that GSD considers that it has suffered loss as a result of the General Court’s failure to dispose of its case within a reasonable time, an action for damages in the General Court constitutes a more appropriate and effective remedy for the purposes of Article 47 of the Charter, as interpreted in the light of Articles 6(1) and 13 ECHR, than some reduction in the level of fine. ( 70 ) I therefore suggest that the Court should make a declaration that there was excessive delay in the disposal of GSD’s appeal before the General Court; and that the Court should make it clear that it is open to GSD to bring a separate action for damages should it choose to do so.

142.

If the Court agrees with my assessment of the appeal, then, in accordance with Articles 137, 138, 140 and 184 of the Rules of Procedure, read together, GSD, the unsuccessful party on all grounds of appeal apart from the second part of the second ground of appeal ( 71 ) should be ordered to bear its own costs and pay two thirds of the Commission’s costs.

143.

I therefore consider that the Court should: