Case T‑130/21

CCPL and Others

v

European Commission

Judgment of the General Court (Ninth Chamber, Extended Composition), 7 December 2022

(Competition – Agreements, decisions and concerted practices – Retail food packaging – Decision amending the amount of a fine – Calculation of the fine – Imputability of the unlawful conduct – 2006 Guidelines on the method for setting fines – Ceiling of the fine – Proportionality – Equal treatment – Ability to pay)

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision amending the amount of the fine adopted following the partial annulment of an initial decision – Account taken of the grounds for the initial decision

   (Arts 101 and 296 TFEU)

   (see paragraphs 23-29)

2. Competition – EU rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of dominant influence exercised by parent company over its wholly owned or almost wholly owned subsidiaries – Rebuttable – Subsidiary owned through a third company within a group active in a wide range of business areas – Fact not sufficient to rebut the presumption

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

   (see paragraphs 37-41, 51-57, 59, 63, 66)

3. Competition – EU rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of dominant influence exercised by parent company over its wholly owned or almost wholly owned subsidiaries – Rebuttable – Evidential obligations of the company seeking to rebut that presumption – Factors insufficient to rebut the presumption

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

   (see paragraphs 73-80)

4. Competition – Fines – Amount – Determination – Maximum amount – Finding that a number of separate infringements have been committed – Application of the maximum amount separately for each infringement – Total amount of fines imposed exceeding the ceiling of 10% of turnover – No infringement of the principles of proportionality and fairness and the principles that fines should be specific to the individual and progressive

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3))

   (see paragraphs 85-88)

5. Competition – Fines – Amount – Determination – Criteria – Need to differentiate between the undertakings involved in the same infringement by reference to their overall turnover – No obligation to differentiate based on the percentage of the fine in the total turnover of the undertakings –No infringement of the principle of equal treatment

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

   (see paragraphs 89-91)

6. Competition – Fines – Amount – Determination – Adjustment of the basic amount – Ability to pay – No obligation to take account of the deficit situation of the undertaking concerned – Actual capacity of the undertaking to pay in a particular social and economic context – Whether to be taken into consideration – Conditions

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 35)

   (see paragraphs 99-108, 112, 127-136, 143-147, 157-161)

7. Competition – Fines – Amount – Determination – Method of calculation laid down by the guidelines drawn up by the Commission – Obligation on the Commission to apply the guidelines in compliance with the principles of equal treatment and the protection of legitimate expectations

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)

   (see paragraph 100)

Résumé

By decision of 24 June 2015, ( 1 ) the Commission imposed fines on five companies belonging to a group of undertakings (‘the CCPL Group’) for having participated, with their competitors, in collusive arrangements aimed at restricting competition on the European market for food packaging in polystyrene and polypropylene trays. When the amount of the fines were set, those five companies benefitted from a 25% reduction on account of their limited ability to pay.

The five undertakings sanctioned include Coopbox Group SpA, Coopbox Eastern s.r.o. and CCPL – Consorzio Cooperative di Produzione e Lavoro SC (‘CCPL’), the parent company of the CCPL Group. Against that background, CCPL was found to be liable for the anticompetitive conduct of its subsidiaries Coopbox Group and Coopbox Eastern, which it owned through a third company, CCPL SpA.

By its judgment of 11 July 2019, ( 2 ) the General Court annulled in part the 2015 Commission decision on the basis that an inadequate statement of reasons had been provided in relation to the granting of the 25% reduction based on the limited ability to pay of the undertakings concerned.

Following the delivery of that judgment, the Commission, by decision of 17 December 2020 ( 3 ) (‘the contested decision’), imposed new fines and dismissed the applicants’ request for a reduction in the amount of the fines on the grounds of their limited ability to pay.

Coopbox Group, Coopbox Eastern and CCPL brought an action for annulment of the contested decision, which is dismissed by the Ninth Chamber (Extended Composition) of the General Court. In its judgment, the Court addresses, first, the conditions for imputing the unlawful conduct of one or more subsidiaries to the parent company and, second, the rules for granting a reduction of the fine on the grounds of the inability of the undertakings concerned to pay.

Findings of the Court

The Court examines, in the first place, the applicants’ pleas in law contesting the imputation of the anticompetitive conduct of the subsidiaries Coopbox Group and Coopbox Eastern to their parent company CCPL.

As regards, first, compliance with the Commission’s obligation to state reasons, the Court notes that the Commission held, in the contested decision, that CCPL was the ultimate parent company of the CCPL Group throughout the duration of the infringements in question, that its direct or indirect shareholding in one or more of the subsidiaries involved in those infringements was 100% and then 93.864%, and that such a shareholding was sufficient for it to be presumed that it exercised a decisive influence over the conduct of its subsidiary. Those factors were such as to enable the applicants to understand the reasoning that had led the Commission to hold CCPL liable and to enable the Court to review the merits of those reasons.

With regard, second, to the applicants’ complaint alleging infringement of the principle of personal responsibility, the Court confirms that CCPL was indeed held liable for the infringements committed by its subsidiaries even though those infringements had not been imputed to the third company through which CCPL owned those undertakings.

However, it follows from settled case-law that, where a parent company directly or indirectly holds all or almost all of the capital in a subsidiary that has committed an infringement of the competition rules, there is a rebuttable presumption that that parent company does in fact exercise a decisive influence over the conduct of its subsidiary. Unless rebutted, such a presumption gives the Commission grounds to hold the parent company liable for the conduct of its subsidiary, without having to produce any additional evidence.

That presumption also applies where the parent company holds the capital of its subsidiary not directly but through other companies to which no infringement has been imputed. Such a circumstance does not call into question the presumption that the parent company, by virtue of its indirect holding in its subsidiaries, in fact exercises decisive influence over their conduct.

Furthermore, it also follows from the case-law that an economic unit made up of several natural or legal persons that infringes the competition rules must answer for that infringement, according to the principle of personal liability.

In the light of those considerations, the Court holds that the Commission did not err in law in imputing to CCPL anticompetitive practices engaged in by Coopbox Group and Coopbox Eastern.

Third, the Court rejects CCPL’s complaint alleging that, since it held only a 93.864% stake in the intermediary company CCPL SpA, the presumption of liability for the acts of its subsidiaries was not applicable in the present case.

On that point, the Court notes that a parent company which holds almost all the capital of its subsidiary is, as a general rule, in a similar situation to that of a sole owner as regards its power to exercise a decisive influence over the conduct of its subsidiary. The Commission was therefore correct to presume that CCPL had made effective use of its power to exercise a decisive influence over the conduct of its subsidiaries, notwithstanding allegations that CCPL had not given instructions to its subsidiaries or had knowledge of the agreements in question.

In the second place, the Court addresses the applicants’ complaints regarding alleged errors made by the Commission in its assessment of their ability to pay.

The Court recalls that two conditions must be met simultaneously in order for a reduction in the fine to be granted under paragraph 35 of the 2006 Guidelines ( 4 ) on the basis that the undertakings concerned are unable to pay. First, it must be shown that the fine imposed would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value. Second, the existence of a specific social and economic context must also be established.

With regard to the first condition, it is clear from the case-law that the reference to the loss of all value of the assets of the undertaking concerned should be understood as envisaging the situation in which the acquisition of those assets by a voluntary purchase or a forced sale of the assets of the undertaking as a going concern seems unlikely, or indeed impossible. Conversely, the mere finding that the undertaking concerned is in an unfavourable or poor financial situation cannot suffice to substantiate a request that the Commission should take account of its inability to pay in order to grant a reduction of the fine. Furthermore, the fact that a measure taken by an EU authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by EU law.

As for the second condition, relating to the existence of a specific social and economic context, the Court notes that this refers to the consequences that payment of the fine could have, in particular by leading to an increase in unemployment or a deterioration in the economic sectors upstream and downstream of the undertaking concerned.

In the light of those conditions, the Court begins by noting that the applicants had neither produced consolidated forecast data concerning their available liquidity for the period from 2020 to 2023 nor explained to the Commission why the CCPL Group could not use the liquidity available at group level to pay the fines at issue. Moreover, in response to the applicants’ argument that the forecast data for the CCPL Group as a whole were not relevant in the present case, the Court emphasises that, in assessing the ability of a group of undertakings to pay, the Commission must take account of the financial position of all the undertakings in that group in so far as the resources of all of those undertakings can be mobilised to pay the fines. Furthermore, the existence of evidence demonstrating a level of liabilities far in excess of assets was not sufficient, on its own, to demonstrate that in the present case the imposition of fines would have jeopardised the applicants’ economic viability.

Thus, the Court finds that the Commission’s conclusions that the CCPL Group had sufficient liquidity to pay the total amount of the fines and that there was only a minimal likelihood that the economic viability of that group would itself be endangered by payment of the fine imposed are not vitiated by any error of assessment.

The Court therefore dismisses the action in its entirety.

( 1 ) Commission Decision C(2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 – Retail food packaging) (‘the 2015 Decision’).

( 2 ) Judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500).

( 3 ) Commission Decision C(2020) 8940 final of 17 December 2020.

( 4 ) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).