Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 19 March 2026 (1)

Case C‑762/24 P

Conserve Italia – Consorzio Italiano fra cooperative agricole Soc. coop. agr.,

Conserves France SA

v

European Commission

( Appeal – Competition – Article 101 TFEU – Agreements, decisions and concerted practices – Regulation (EC) No 1/2003 – Fines – Article 23(2) – Determination of the statutory ceiling of the fine – Relevant turnover – Entity active in the processing of agricultural products – Entity operating in the form of a cooperative society – Entity classified as both an ‘undertaking’ and an ‘association of undertakings’ )

I.      Introduction

1.        By their appeal, Conserve Italia – Consorzio Italiano fra cooperative agricole Soc. coop. agr. (‘Conserve Italia’) and Conserves France SA (together, ‘the appellants’) seek to have set aside the judgment of the General Court of the European Union of 4 September 2024, Conserve Italia and Conserves France v Commission (T‑59/22, EU:T:2024:574; ‘the judgment under appeal’), by which the General Court dismissed their action for annulment in part of Commission Decision C(2021)8259 final of 19 November 2021 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (2) (Case AT.40127 – Canned vegetables) (‘the decision at issue’), (3) and a reduction in the amount of the fine imposed on them. More specifically, by that decision, the European Commission imposed on the appellants jointly and severally a fine of EUR 20 million for having participated, between 2000 and 2013, in a cartel on the market for the marketing of canned peas and/or carrots and canned sweetcorn.

2.        In the present appeal, like their action at first instance, the appellants dispute neither the existence of the infringement at issue nor their participation therein, but only the amount of the fine imposed by the Commission. They claim, in essence, that, in view of its cooperative nature and vertical mutualist structure, Conserve Italia should have been classified as an ‘association of undertakings’. In so doing, the statutory ceiling of 10% provided for in Article 23(2) of Regulation (EC) No 1/2003 (4) should have been calculated, not on the basis of the consolidated worldwide turnover of the Conserve Italia group, as an ‘undertaking’, under the second subparagraph of that provision, but solely on the basis of Conserve Italia’s turnover relating to the processed products covered by the cartel, under the third subparagraph of that provision, those products having been contributed by 350 agricultural holdings acting as ‘members’ of Conserve Italia.

3.        The present case thus offers the Court of Justice the opportunity to clarify the rules applicable to the determination of the statutory ceiling for fines which may be imposed by the Commission in the event of infringement of the competition rules, in particular where the entity in question is classified as both an ‘undertaking’ and an ‘association of undertakings’.

II.    Legal framework

A.      Regulation No 1/2003

4.        Article 23 of Regulation No 1/2003, entitled ‘Fines’, provides in paragraph 2 thereof:

‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a)      they infringe Article [101 or 102 TFEU] …

…

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.

Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association.

…’

B.      Guidelines on the method of setting fines

5.        The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (‘the Guidelines on the method of setting fines’) (5) provide, in points 14, 32 and 33 thereof:

‘14.      Where the infringement by an association of undertakings relates to the activities of its members, the value of sales will generally correspond to the sum of the value of sales by its members.

…

32.      The final amount of the fine shall not, in any event, exceed 10% of the total turnover in the preceding business year of the undertaking or association of undertakings participating in the infringement, as laid down in Article 23(2) of Regulation No 1/2003.

33.      Where an infringement by an association of undertakings relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by that infringement.’

III. The background to the dispute and the decision at issue

6.        The background to the dispute, as set out by the General Court in paragraphs 2 to 9 of the judgment under appeal, may, for the purposes of the present Opinion, be summarised as follows.

7.        Conserve Italia and its subsidiary Conserves France, in which it has a 99.77% holding, operate in the food processing sector.

8.        By the decision at issue, the Commission found that the appellants had participated in a single infringement of Article 101(1) TFEU and Article 53(1) of the EEA Agreement. That infringement consisted, during the period from 15 March 2000 to 1 October 2013, in price coordination, market sharing and an exchange of sensitive information concerning sales of particular types of canned vegetables to distributors or to the food service industry in the European Economic Area. More specifically, the appellants had participated in two separate agreements, one relating to sales of canned vegetables such as green beans, peas, and pea and carrot mixes, and the other concerning sales of canned sweetcorn. (6)

9.        Consequently, the Commission imposed on the appellants jointly and severally a fine of EUR 20 million pursuant to Article 23(2) and (3) of Regulation No 1/2003 and the Guidelines on the method of setting fines. (7)

IV.    The procedure before the General Court and the judgment under appeal

10.      The appellants brought an action before the General Court seeking, first, partial annulment of the decision at issue as regards the determination of the amount of the fine and, second, a reduction in the amount of the fine imposed on them, on the basis of the unlimited jurisdiction provided for in Articles 261 TFEU and Article 31 of Regulation No 1/2003.

11.      In support of their claims, the appellants put forward two pleas in law alleging, first, infringement of Article 23(2) of Regulation No 1/2003 and point 33 of the Guidelines on the method of setting fines, as regards the determination of the turnover taken into account in order to calculate the ceiling of the fine, (8) and, second, infringement of Article 101 TFEU and Article 23(3) of Regulation No 1/2003, and of points 14, 19, 20, 22, 24 and 25 of those guidelines, as regards the determination of the basic amount of the fine. (9)

12.      By the judgment under appeal, the General Court dismissed that action as unfounded.

13.      The first plea in law, relating to the statutory upper limit of the fine adopted and applied by the Commission in the decision at issue, was rejected by the General Court as unfounded on the ground, in essence, that Conserve Italia had been correctly classified by the Commission as an ‘undertaking’ within the meaning of the second subparagraph of Article 23(2) of Regulation No 1/2003, with the result that the appellants’ arguments relating to the parallel status of Conserve Italia as an ‘association of undertakings’ were ineffective and, as to the remainder, that their arguments concerning, first, the specific legal and factual situation, namely the mutualist structure of Conserve Italia, and, second, its conduct and that of its members on the markets concerned by the infringement were either irrelevant for the purposes of determining the statutory ceiling of the fine to be imposed on the appellants under the second subparagraph of Article 23(2) of that regulation, or unfounded (paragraphs 29 to 46 of the judgment under appeal). In addition, the General Court held that, in any event, the conditions for the application of the statutory ceiling of the fine referred to in the third subparagraph of Article 23(2) of that regulation were not satisfied (paragraphs 47 to 51 of that judgment).

14.      As regards the second plea, relating to the determination of the basic amount of the fine imposed on the appellants, which is not disputed in the present appeal, the General Court rejected it as also unfounded, referring, inter alia, as regards the determination of the value of sales, to some of its assessments made in the context of the first plea (paragraphs 67 and 68 of that judgment).

V.      Procedure before the Court and forms of order sought

15.      On 31 October 2024, the appellants lodged an appeal against the judgment under appeal. They claim that the Court should set aside that judgment, reduce the amount of the fine imposed on them and order the Commission to pay the costs of the present proceedings and those at first instance.

16.      The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.

17.      The parties presented oral argument and replied to questions put by the Court at the hearing held on 17 December 2025.

VI.    Analysis

18.      The appellants put forward two grounds in support of their appeal. The first ground of appeal alleges failure to state reasons and misapplication of Article 23(2) of Regulation No 1/2003. The second ground of appeal, which partially overlaps with the first, alleges errors of law committed by the General Court in the light of the requirements of that provision, read together with Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

A.      Preliminary observations

19.      Before examining those grounds of appeal, I would like to make some preliminary observations. In so far as the appeal as a whole concerns the application of the second and third subparagraphs of Article 23(2) of Regulation No 1/2003, it seems to me necessary to recall the content and application of those provisions, in the light of their wording, their legislative history, their context and the objectives which they pursue. (10)

20.      In the first place, as regards the wording of the second subparagraph of Article 23(2) of Regulation No 1/2003, that provision lays down the general rule that the statutory ceiling is not to exceed 10% of the total turnover ‘for each undertaking and association of undertakings participating in the infringement’, whereas its third subparagraph resembles a kind of lex specialis, by providing that ‘where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association’. (11)

21.      It is apparent from the relationship between those two paragraphs that, in principle, where an entity involved in an infringement of EU competition law is classified as an ‘association of undertakings’, the Commission is generally required to apply the general rule for calculating the statutory ceiling of the fine laid down in the second subparagraph except where two conditions are met: first, the infringement ‘relates’ to the activities of its members and, second, at least some of the members of that association of undertakings are ‘active on the market affected by the infringement’. The first condition appears relatively easy to satisfy, since ‘associations of undertakings’ normally defend the common interests of their members, in particular vis-à-vis other economic operators, (12) and their operations may therefore easily ‘relate’ to the activities of their members, the verb ‘to relate’ being broad and not strictly defined. However, the second condition is more demanding in that it requires the members to be ‘active on the market affected by the infringement of the association’. Since that second condition necessarily implies that the first condition is satisfied, in reality, the only requirement imposed by the third subparagraph is that the infringement committed by the association of undertakings must relate to a market on which its members are active.

22.      It follows that, in general, the turnover of an association of undertakings constitutes an appropriate basis for determining the statutory ceiling of the fine where the association itself is active on the market concerned by the infringement, in the sense that it makes its own sales on that market – sales which are recorded in its turnover. However, where that is not the case and the infringement concerns a market on which members of that association are active, then the association may be fined up to 10% of the turnover of those active members.

23.      Nevertheless, a purely literal interpretation of the second and third subparagraphs of Article 23(2) of Regulation No 1/2003 does not cover all the situations. The question arises as to which reference turnover should be considered the most appropriate where particular members of the association are active on the relevant market and the association itself also carries on an independent activity on that market. In such a situation, must the general rule (second subparagraph) prevail over the lex specialis (third subparagraph)?

24.      In that regard, in the second place, as regards the legislative history of Article 23(2) of Regulation No 1/2003, I note that no provision equivalent to the third subparagraph existed under the aegis of the previous Regulation No 17. (13) However, that did not prevent the courts of the European Union, and in particular the General Court, from calculating the statutory ceiling of a fine imposed on associations of undertakings on the basis of the turnover of its members, where such a calculation was more capable of reflecting the size and economic power of the association on the market. (14) That approach was moreover confirmed by the Court in the judgment in Finnboard, which recognised that ‘when a fine is imposed on an association of undertakings, whose own turnover most often does not reflect its size or power on the market, it is only when the turnover of the member undertakings is taken into account that a fine with deterrent effect can be determined. … It is not necessary that the members of the association should have actually participated in the infringement, but the association must, by virtue of its internal rules, have been able to bind its members.’ (15) It is only following that judgment that the EU legislature added in the proposal for Regulation No 1/2003, the third subparagraph of Article 23(2) of that regulation. That subparagraph, which did not appear either in the Commission’s initial proposal for a regulation (16) or in the various amendments proposed by the Parliament, (17) was introduced only in the context of the final stage of the adoption of that regulation, presumably in order to codify that case-law arising from the application of Article 15(2) of Regulation No 17. (18)

25.      Following that codification of the case-law in Regulation No 1/2003, the Court delivered two judgments relevant to the application of the rules on the determination of the statutory ceiling of the fine to associations of undertakings: first, the judgment in Coop de France bétail et viande (19) (which, however, concerned the analysis of Article 15(2) of Regulation No 17) and, second, the ‘Lithuanian notaries’ judgment. In both cases, the Court confirmed and reinforced the idea that the use of the turnover of the members of an association is justified by the need to better reflect the size and economic power on the market of the association of undertakings which has infringed competition law, in order to determine a penalty that is genuinely dissuasive. (20)

26.      Finally, in the third and last place, as regards the objectives pursued by Article 23(2) of Regulation No 1/2003, I note that, in accordance with the Court’s settled case-law, the purpose of establishing a statutory ceiling is to ensure that the imposition of a fine higher in amount than that ceiling should not exceed the capacity of an undertaking (or association of undertakings) to make payment at the time when it is identified as responsible for the infringement and a financial penalty is imposed on it by the Commission. (21) Thus, that provision seeks to prevent fines from being disproportionate in relation to the size of the undertaking which participated in the infringement, since only the total turnover can effectively give an approximate indication in that regard. (22) However, that purpose must be combined with the concern of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and economic power of the undertaking concerned, that is to say, the overall resources of the infringer. (23)

27.      It is in the light of those principles that the present appeal must be examined.

B.      The first ground of appeal, alleging failure to state reasons and infringement of Article 23(2) of Regulation No 1/2003

28.      By their first ground of appeal, which is divided into two parts, the appellants claim that the judgment under appeal is vitiated by a manifest failure to state reasons in so far as the General Court, by wrongly classifying Conserve Italia as an ‘undertaking’ for the purposes of determining the ceiling of the amount of the fine under Article 23(2) of Regulation No 1/2003, merely confirmed the Commission’s reasoning by failing to take into consideration the appellants’ arguments relating to the characteristics and functioning of a cooperative society of a mutualist type, such as Conserve Italia (first part). In addition, the General Court infringed Article 23(2) of that regulation by confirming the application of the second subparagraph of Article 23(2) thereof for the purposes of determining the fine imposed by the Commission in the decision at issue, while at the same time holding that the conditions for the application of the third subparagraph of Article 23(2) of that regulation were not satisfied (second part).

1.      Admissibility

29.      As a preliminary point, I note that, without formally raising a plea of inadmissibility, the Commission expresses doubts as to the admissibility of the first ground of appeal, on the ground that the appellants have, in essence, altered the subject matter of the proceedings before the General Court. Although, in the proceedings at first instance, they sought to demonstrate that the Commission had wrongly classified them as an ‘undertaking’ and had, therefore, wrongly excluded the application of the provision relating to the determination of the ceiling of the fine applicable, in its view, to ‘associations of undertakings’, namely the third subparagraph of Article 23(2) of Regulation No 1/2003, it must be held that, in the context of the first ground of the present appeal, the appellants no longer challenge the judgment under appeal in so far as it confirms the classification of Conserve Italia as an ‘undertaking’, (24) but submit, in essence, that, even under that classification, the General Court should, in view of its specific features, have altered the decision at issue by applying that same provision to them. (25)

30.      In that regard, I would point out that, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal, since the jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. (26)

31.      In the present case, it is apparent from the examination of the documents in the proceedings at first instance that although, in their application, the appellants did in fact claim that the Commission had wrongly classified Conserve Italia as an ‘undertaking’ rather than as an ‘association of undertakings’, (27) with the result that the third subparagraph of Article 23(2) of Regulation No 1/2003 was not applied, (28) the appellants qualified that approach in their reply, by granting the possibility that Conserve Italia could be regarded both as an ‘undertaking’ and as an ‘association of undertakings’, while specifying that it fell ‘more’ within that second classification. (29) It follows that the appellants’ arguments cannot be classified as ‘new’, since the question of the applicability of the third subparagraph of Article 23(2) of that regulation, irrespective of the classification applied to Conserve Italia in the light of its specific features, was raised and debated before the General Court. (30)

32.      In the light of the foregoing, I consider that the first ground of appeal must be declared admissible.

2.      Substance

(a)    The first part of the first ground of appeal, alleging failure to state reasons in the judgment under appeal

(1)    Arguments of the parties

33.      In support of the first part of the first ground of appeal, the appellants claim, in essence, that the judgment under appeal, in paragraphs 31 to 52, is vitiated by a failure to state reasons in so far as the General Court, by classifying, first, Conserve Italia as an ‘undertaking’ subject to the second subparagraph of Article 23(2) of Regulation No 1/2003 and, second, by holding that the arguments based on the classification of Conserve Italia as an ‘association of undertakings’ were ineffective, merely endorsed the Commission’s reasoning, without examining the arguments relating to the characteristics and functioning of a multi-product cooperative society of a mutualist type, such as Conserve Italia. (31) In that regard, the case-law of the Court requires the Commission not to exercise its power to impose penalties in a ‘formalistic’ manner, without due account being taken of the characteristics of the undertaking concerned. (32) By declaring Conserve Italia’s specific features ineffective, the General Court not only refrained from examining them for the purposes of the judgment, but also failed to give sufficient reasons for rejecting the arguments put forward by the appellants.

34.      The Commission contends that the appellants’ pleadings do not allow the alleged failures to state reasons to be precisely identified, since they merely repeat, in essence, the arguments already put forward before the General Court and thus seek to obtain from the Court of Justice a fresh examination of the action at first instance. In its view, the appellants’ line of argument is therefore inadmissible and, in any event, unfounded.

(2)    Assessment

35.      As a preliminary point, I would point out that, according to the settled case-law of the Court, the General Court’s obligation to state reasons under the second paragraph of Article 296 TFEU and Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union requires it clearly and unequivocally to disclose its thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. (33) However, as the Court has also stated, that obligation to state the reasons on which its decisions are based 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 General Court has not upheld their arguments and provides the Court of Justice with sufficient information to exercise its powers of review when examining an appeal. (34) Furthermore, the duty to state adequate reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. (35)

36.      The first part of the first ground of appeal must therefore be examined in the light of those considerations.

37.      In that regard, it appears, in the present case, and contrary to the appellants’ assertions, that the General Court gave sufficient reasons for holding that their arguments relating to the characteristics and functioning of Conserve Italia were not such as to justify the application of the third subparagraph of Article 23(2) of Regulation No 1/2003.

38.      In the first place, in paragraphs 27 to 32 of the judgment under appeal, the General Court held that the Commission had rightly classified Conserve Italia as an ‘undertaking’ within the meaning of the second subparagraph of Article 23(2) of that regulation. After recalling that, in competition law, the definition of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, the General Court rightly observed that any activity consisting in the offering of goods or services on a given market constitutes such an economic activity. That was precisely the case with Conserve Italia, whose main activity consisted in the production and sale of fruit drinks and canned fruit and vegetables, namely the activity concerned by the infringement covered by the decision at issue. It was therefore by applying settled case-law (36) to the present case that the General Court rightly held that Conserve Italia was an ‘undertaking’ and that the statutory ceiling of the fine had to be calculated on the basis of its turnover in accordance with the second subparagraph of Article 23(2) of that regulation. That analysis appears to be all the more justified since, as stated in point 29 of the present Opinion, the appellants’ main argument lay in the challenge to the classification of Conserve Italia as an ‘undertaking’.

39.      In the second place, the General Court considered that that conclusion could not be called into question by the appellants’ arguments seeking, first, to challenge its classification as an ‘undertaking’ on the ground that Conserve Italia is an ‘association of undertakings’ (paragraphs 34 and 35 of the judgment under appeal) (37) and, second, to justify the application of the third subparagraph of Article 23(2) of Regulation No 1/2003, on account of the alleged specific features of its operation (paragraphs 37 to 46 of that judgment).

40.      In so far as, in the context of the present appeal, the classification as an ‘undertaking’ is no longer disputed, (38) only the arguments relating to the specific features of Conserve Italia, capable of justifying the application of the third subparagraph of Article 23(2) of that regulation, are relevant for the purpose of assessing whether the statement of reasons is sufficient.

41.      In that regard, it seems necessary to me to recall, at the outset, that all of those arguments, as they appeared in the application at first instance, sought to demonstrate that Conserve Italia had to be classified exclusively as an ‘association of undertakings’. (39) Thus, the examination of those arguments in the context of the General Court’s duty to state reasons makes sense only in the event that the Court considers that such a duty existed, even for the sake of completeness, in so far as that classification as an ‘association of undertakings’ would have been relevant for the purposes of the application of Article 23(2) of that regulation.

42.      In any event, the arguments put forward by the appellants at first instance are based on numerous specific features of Conserve Italia’s regulatory, organisational and operational structure, seeking to demonstrate, in essence, that it was active on the market in question only in order to pursue its mutualist objective, solely for the benefit of agricultural holdings, through first-level cooperatives. The agricultural holdings provide guidelines to Conserve Italia, through first-level cooperatives, and decide on its management and its actions, with the sole and ultimate objective of pursuing a mutualist objective.

43.      Those arguments, submitted by the appellants at first instance, may be summarised as follows:

–        agricultural holdings are autonomous non-vertically integrated entities within Conserve Italia, which use it solely to operate on the market for canned vegetables; (40)

–        it is true that Conserve Italia is the entity which actually implemented the cartel, but it is not the entity which benefited from it; (41)

–        the structure of Conserve Italia is of an eminently decentralised nature, which distinguishes it from the structure of a group of undertakings because: (i) decisions on types and quantities of products and on strategies are taken autonomously by agricultural holdings; (42) (ii) the legal obligations incumbent on agricultural holdings under Conserve Italia’s regulations guarantee the decentralised relationship between Conserve Italia and the agricultural holdings; (43) (iii) the goods contributed remain the property of the agricultural holdings until they are sold to third parties on the market and those holdings continue to bear the risks associated with the possible loss or decay of raw materials even after the agricultural products have been delivered, (44) and (iv) the price of the goods contributed is determined after the sale of the canned vegetables on the market; (45)

–        Conserve Italia satisfies the conditions required by the case-law of the European Union for classification as an ‘association of undertakings’, in so far as, first, it acts solely in the interests of agricultural holdings (being thus not the only undertaking to operate on the market) and, second, the majority of the members of its management bodies are representatives of first-level cooperatives, which hold the majority of votes in the shareholders’ meeting and elect the majority of the members of the board of directors, (46) and, lastly,

–        Conserve Italia has a structure comparable to that of organisations of agricultural holdings, for which provision is made for ad hoc European rules, (47) under which producer organisations are entrusted with the task of planning production and adapting it to demand, in particular in terms of quantity and quality, of promoting concentration of supply and the placing on the market of members’ production, of reducing production costs and of regularising producer prices. In order for an agricultural cooperative to qualify for the status of ‘producer organisation’ under EU legislation, it is necessary, inter alia: (i) that the producer members exercise democratic control over their organisation and control its decisions; (ii) that the agricultural cooperative markets most of the products contributed by the producer members, and (iii) that the income from the sale of the products is returned to the producer members in a transparent manner. All those conditions are satisfied in the case of Conserve Italia as a subsidiary of the ‘Apo Conerpo’ producer organisation. (48)

44.      In that regard, in paragraphs 37 to 45 of the judgment under appeal, the General Court examined the merits of the various arguments relating to the specific features of Conserve Italia, in order to reach the conclusion that they were, in essence, irrelevant, for the following reasons:

–        the exercise of an economic activity by a cooperative society cannot, as a matter of principle, be exempt from the application of the rules of EU competition law, and the conditions for the applicability of those rules to the cooperative sector are no different from those of other forms of organisation of economic activity, since an economic entity organised in accordance with cooperative principles may very well be classified as an undertaking, irrespective of its mutuality (paragraphs 37 and 38 of the judgment under appeal); (49)

–        the proposition that, in view of the mutualist nature of its activity, Conserve Italia did not benefit from the infringement which it committed, but that that infringement benefited only the agricultural holdings in question, even if it were established, had no bearing on the fact that Conserve Italia carried on an economic activity on the market affected by the infringement and that it committed that infringement (paragraph 39 of the judgment under appeal);

–        the proposition that Conserve Italia carries on its activity solely for the benefit of its members, even if it were established, is irrelevant in so far as classification as an undertaking by reason of the exercise of an activity of an economic nature is not subject to the pursuit of a profit-making objective (paragraph 40 of the judgment under appeal); (50)

–        the claim that Conserve Italia has no decision-making autonomy and is merely a coordination structure through which the agricultural holdings, through their cooperative partners, implement their own independently defined commercial strategy is, in essence, contradicted by other assertions made by the appellants in their written pleadings (paragraph 41 of the judgment under appeal); (51)

–        the claims, first, that decisions concerning the strategy on the canned vegetables market are taken autonomously by agricultural holdings, and not by Conserve Italia, and, second, that Conserve Italia’s regulations guarantee the decentralised relationship between the agricultural holdings and Conserve Italia, were not confirmed by factual evidence relating to the organisation and activity of that undertaking (paragraphs 42 to 44 of the judgment under appeal), (52) and, lastly,

–        the claims, first, that, under Italian law, the fresh vegetables provided to Conserve Italia remain the property of the agricultural holdings until they are processed and the canned vegetables until they are sold to third parties on the market and, second, that Conserve Italia establishes the selling prices of canned vegetables in the interests of the agricultural holdings and with their participation, even if they were established, are not capable of invalidating the fact that Conserve Italia carries on an economic activity on the canned vegetable market (paragraph 45 of the judgment under appeal).

45.      In the light of that analysis carried out by the General Court, in paragraphs 37 to 45 of the judgment under appeal, I consider it necessary to make the following few observations.

46.      First of all, I would like to point out that the fact that the General Court, which alone has jurisdiction to assess the facts, adopts an interpretation different from that advocated by the appellants cannot, in itself, constitute a defect in the statement of reasons. (53) That finding appears relevant, in particular, in the light of the argument put forward by the appellants that Conserve Italia lacks decision-making autonomy. (54) Furthermore, assessment of the facts does not, save where there may have been distortion of the facts or evidence, (55) constitute a question of law which is subject, as such, to review by the Court of Justice. (56)

47.      Next, it also seems to me to follow from the General Court’s analysis that it expressly examined all the arguments raised by the appellants, admittedly in a different order from that set out in the application, with the exception of the argument alleging that Conserve Italia has a structure comparable to that of organisations of agricultural holdings provided for by EU legislation. That choice seems to me to be fully justified.

48.      First, in the light of the pleadings at first instance, it should be noted that that line of argument sought to show that Conserve Italia had to be regarded as a cooperative society and, a fortiori, as an ‘association of undertakings’. (57) It is apparent from the reply that the appellants considered it appropriate to refer to the EU rules on producer organisations in order to ‘facilitate understanding of the rules governing the operation of cooperative societies such as Conserve Italia’, and to point out that ‘the specific features of the operation of mutualist societies … imposed by the rules of civil and tax law applicable to cooperative societies established at national level’ are also ‘recognised at European level in [Regulation No 1435/2003], which governs European cooperative societies’. (58) Not only does the General Court recall, in paragraph 35 of the judgment under appeal, that the Commission acknowledged in the decision at issue that Conserve Italia could also be classified as an ‘association of undertakings’, but also, in paragraph 45 of that judgment, that the rules of national law cannot call into question the fact that Conserve Italia carries on an economic activity on the canned vegetable market. That analysis applies, by analogy, also in the light of the rules of EU law, with the result that the answer to that line of argument was provided in that judgment, albeit implicitly.

49.      Second, for the sake of completeness, I note that the appellants have not specified how the obligations arising from that EU legislation could have affected the rules for imposing fines in the field of competition law and, a fortiori, the application of Article 23(2) of Regulation No 1/2003. Similarly, they do not refer to any contradiction in EU law, and in particular between the requirements of competition law and those of the rules on the common organisation of the markets in agricultural products, either national or European. (59) They merely state that Conserve Italia contributes to the pursuit of the objectives of the producer organisation ‘Apo Conerpo’ and therefore constitutes a ‘subsidiary’, which satisfies the conditions laid down by EU legislation, without, however, explaining why that precludes its classification as an ‘undertaking’. In that regard, and so far as is relevant, I note that, even if it were accepted that Conserve Italia has a structure equivalent to that of an ‘agricultural producer organisation’ for the purposes of Regulation No 1308/2013, none of the provisions laid down in that regulation allows, for the purposes of imposing a fine, the conduct of a ‘common organisation’ to be attributed exclusively to its members.

50.      In those circumstances, I consider that the General Court cannot be criticised for having failed to respond to the arguments relating to the specific features of Conserve Italia, since the reasoning followed by that court, in paragraphs 37 to 45 of the judgment under appeal, is, in that regard, sufficient to enable the appellants to know why their arguments were held to be ineffective and to provide the Court of Justice with sufficient information to exercise its powers of review in the context of the present appeal.

51.      Moreover, that conclusion cannot be invalidated by the appellants’ arguments, which seek, in essence, to criticise an alleged ‘formalistic’ application of the provisions in question by the General Court, which, in their view, fails to take account of the characteristics of Conserve Italia. That line of argument does not seek to challenge the adequacy of the General Court’s reasoning, but whether that reasoning is well founded, an analysis which falls within the scope of the second part of the first ground of appeal. (60) More specifically, the question as to whether the General Court applied Article 23(2) of Regulation No 1/2003 in an overly ‘formalistic’ manner concerns the very application of the rule of law and not the scope of the statement of reasons.

52.      Consequently, I propose that the first part of the first ground of appeal should be rejected as unfounded.

(b)    The second part of the first ground of appeal, alleging misapplication of Article 23(2) of Regulation No 1/2003

(1)    Arguments of the parties

53.      In support of the second part of the first ground of appeal, the appellants claim that, in paragraphs 47 to 51 of the judgment under appeal, the General Court erred in law by carrying out a ‘rigid and formalistic reading’ of the provisions relating to the calculation of fines, in breach of the third subparagraph of Article 23(2) of Regulation No 1/2003. In that regard, they submit that, although it is common ground that the case-law of the Court recognises the possibility that the same entity may be classified both as an ‘undertaking’ and as an ‘association of undertakings’, the General Court excluded a priori the application of that provision, even though the conditions for its application were satisfied. That is the case since, first, the infringement at issue concerned the activity of the approximately 350 agricultural holdings which were ‘members’ of Conserve Italia, in its capacity as an ‘association of undertakings’ and, second, those agricultural holdings were active on the market concerned by the infringement (namely, the canned vegetable market). Therefore, according to a ‘functional’ application of the third subparagraph of Article 23(2) of that regulation, the statutory ceiling of the fine should have been determined not on the basis of the appellants’ total turnover, (61) but on that of Conserve Italia’s turnover relating to the products covered by the cartel during the last year of participation in the infringement. (62) The taking into account of Conserve Italia’s turnover, rather than that of the agricultural holdings, as required by the wording of the third subparagraph of Article 23(2) of that regulation, follows from the need to take account of the specific features of the cooperative sector, without compromising the objectives of competition law, and in particular the imposition of a fine proportionate to the seriousness of the infringement and to the economic power of the operators concerned. (63) That approach is all the more justified since only the 350 agricultural holdings which contributed the products in question benefited from the application of higher prices resulting from the operation of the cartel and are required to pay the fine imposed.

54.      The Commission contends that the appellants’ arguments are inadmissible and, in any event, unfounded.

(2)    Assessment

55.      At the outset, I would point out that the General Court considered that, first, the ceiling of the fine had been correctly determined pursuant to the second subparagraph of Article 23(2) of Regulation No 1/2003, since it is common ground that Conserve Italia participated in the cartel as an ‘undertaking’ (paragraph 46 of the judgment under appeal) and, second, ‘in any event’, the ceiling of the fine could not have been validly calculated on the basis of the third subparagraph of Article 23(2) of that regulation, since the conditions laid down in that provision are not satisfied. More specifically, the General Court explained that the infringement concerned the market for canned vegetables, on which Conserve Italia alone was active, and not the upstream market for the sale of fresh vegetables used by Conserve Italia for the production of canned vegetables, on which the agricultural holdings, which are members of the 34 cooperatives, themselves members of Conserve Italia, operate (paragraphs 49 and 50 of that judgment). In addition, the General Court ruled out the application of that provision, on the ground that its application would conflict, in the present case, with its ratio legis, which is intended to strengthen and not to mitigate the deterrent effect of the fines imposed. The General Court thus held that, since Conserve Italia carries on an economic activity distinct from that of its members and has its own turnover which adequately reflects its size and economic power, it was neither necessary nor appropriate to have reference to the combined turnover of its members in order to determine a deterrent fine (paragraph 51 of that judgment).

56.      That assessment seems to me to be well founded, meaning that the General Court cannot be criticised for having infringed a rule of law by rejecting the appellants’ request for a ‘functional’ application of the third subparagraph of Article 23(2) of Regulation No 1/2003.

57.      Having determined that the statutory ceiling of the fine had to be set on the basis of the entity active on the market concerned by the infringement at issue, and which actually generated its own turnover, namely Conserve Italia, the General Court merely applied the general rule that the statutory ceiling of the fine does not exceed 10% of the total turnover ‘for each undertaking and association of undertakings participating in the infringement’. (64)

58.      Such a conclusion cannot be called into question by the various arguments put forward by the appellants.

59.      In the first place, I note that that second part of the first ground of appeal seeks, in essence, to challenge the General Court’s assessment of the facts, which cannot be admissible at the appeal stage. First, the appellants’ complaint is based implicitly on the allegation of an error in the assessment of the facts, in that the General Court failed to recognise that the infringement at issue related to the activity of the 350 agricultural holdings associated with Conserve Italia. Referring to recitals 8 and 656 of the decision at issue, the General Court expressly (and definitively) resolved that question, reiterating that it was common ground that the market affected by the infringement was that of canned vegetables, which was operated exclusively by Conserve Italia, and not the upstream market, namely the market for fresh vegetables, on which the 350 agricultural holdings operated. (65) Such an assessment cannot be invalidated at the present stage, in the absence of a manifest error of assessment. Second, I note that, contrary to their initial position at first instance, (66) the appellants no longer dispute that Conserve Italia may be classified as an ‘undertaking’ because it carries out an economic activity, and that the legal conditions for the applicability of the second subparagraph of Article 23(2) of Regulation No 1/2003 are therefore formally satisfied. They submit, however, that the General Court should have departed from a reading which they describe as ‘rigid and formalistic’ of that regulation, in particular because of the specific features of the functioning of Conserve Italia. In so doing, and under the guise of an alleged breach of a rule of law, the appellants are in fact inviting the Court to re-examine the factual elements relating to the functioning of Conserve Italia and its role in the infringement, which, in the absence of a manifest error (which, moreover, is not supported by the appellants (67)), cannot be carried out at the present stage of the proceedings. For those reasons, I consider that that part of the ground of appeal should be rejected as inadmissible.

60.      In the second place, assuming that the Court considers it necessary to examine the substance of the second part of the first ground of appeal, it should be noted that the appellants’ claims are, in any event, unfounded.

61.      First, as has already been stated in the context of the examination of the first part of the first ground of appeal, the General Court set out in detail, in paragraphs 29 to 45 of the judgment under appeal, the reasons why Conserve Italia had to be regarded both as an ‘undertaking’ with its own commercial policy, and not as a mere means of implementing the business strategy of agricultural holdings, and as operating independently on the market concerned by the infringement at issue. Thus, on the basis of those facts, it seems to me to be entirely logical and consistent, without being ‘excessively formalistic’, that the General Court considered that the Commission had correctly determined the statutory ceiling of the fine under the second subparagraph of Article 23(2) of Regulation No 1/2003, the provision applicable to ‘undertakings’.

62.      Second, I also consider that the General Court was right to hold that the third subparagraph of Article 23(2) of that regulation was not applicable in the present case. Irrespective of the fact that the General Court set out the reasons why the conditions laid down in that provision were not satisfied in the present case, an assessment of the facts which does not fall within the jurisdiction of the Court (see points 55 to 59 of the present Opinion), it should be noted that, even if that provision were applicable, the interpretation proposed by the appellants clearly does not correspond to the wording of that provision. (68)

63.      As a reminder, the appellants argue that the statutory ceiling of the fine should have been calculated on the basis of ‘Conserve Italia’s turnover relating to the products covered by the cartel during the last year of participation in the infringement’. Such an application does not correspond to the wording of the third subparagraph of Article 23(2) of that regulation. Moreover, that provision provides for account to be taken of the turnover of the ‘members’ of the association of undertakings, and not that of the association itself, still less on a pro rata basis. Furthermore, while the third subparagraph of Article 23(2) of that regulation does not specify the reference year of turnover – which, from the point of view of foreseeability and legal certainty, is deficient – it must be pointed out that the second subparagraph of that provision expressly lays down the business year preceding the adoption of the decision as the reference year. For the sake of consistency, contrary to the appellants’ assertions at the appeal stage, there is therefore no reason to derogate from that rule in the context of the application of that third subparagraph. (69)

64.      Third, and for reasons of completeness, it seems to me useful to examine whether the ‘functional’ application of the third subparagraph of Article 23(2) of Regulation No 1/2003 could have been justified for the other reasons mentioned by the appellants in the second part of the first ground of appeal.

65.      On the one hand, as regards the alleged ‘need to take account of the specific features of the cooperative sector, without sacrificing the objectives of competition law’, it must be stated that the argument that taking into account Conserve Italia’s turnover relating to the products concerned, rather than that of the 350 agricultural holdings concerned by those products, would, in essence, be more equitable in comparison with other agricultural holdings which, instead of joining together in the form of a cooperative, process and market the products themselves, is ineffective. It is not apparent from the file submitted to the Court that such agricultural associations had actually participated in the cartel at issue. Moreover, that argument does not call into question the undisputed fact that Conserve Italia itself sold canned vegetables on the market and committed the infringement and that, therefore, its turnover accurately reflects its activity on the canned vegetables market, where the infringement was committed, as well as its size and economic power.

66.      On the other hand, the appellants submit, in essence, that only the 350 agricultural holdings benefited from the application of higher prices resulting from the operation of the cartel at issue and are therefore required to pay the fine imposed. Aside from the fact that that assertion appears to have been strongly contradicted by the Commission in the decision at issue, (70) it should be noted that the purpose of Article 23(2) of Regulation No 1/2003 is not to identify the person liable to pay the fine, but to determine the statutory ceiling of that fine, in order to ensure that it is proportionate to the economic power of the operators concerned. In any event, the identification of the beneficiaries of anti-competitive conduct within a group of entities, be it a ‘group’ or an ‘association of undertakings’, cannot constitute a relevant factor for the purposes of imposing a fine where the liability of the group is established. Similarly, considerations relating to the ability to pay a fine fall rather within the scope of the rules on ability to pay laid down, inter alia, in point 35 of the Guidelines on the method of setting fines, which, in the present case, allowed an additional reduction of 49.83% of the fine. (71)

67.      Consequently, I propose that the second part of the first ground of appeal should be rejected as inadmissible and, in any event, unfounded.

C.      The second ground of appeal

1.      Arguments of the parties

68.      By their second ground of appeal, which relates to the same paragraphs 48 to 51 of the judgment under appeal and partially overlaps with the second part of the first ground of appeal, the appellants claim infringement and misapplication of Article 23(2) of Regulation No 1/2003, read in conjunction with Article 49 of the Charter. According to the appellants, the General Court misinterpreted the case-law of the Court relating to that provision, (72) in particular by stating, in paragraph 48 of that judgment, that recourse to the third subparagraph of Article 23(2) is exceptional and should be used only to preserve the deterrent effect of the fine. They submit that such a restrictive interpretation is contrary to the requirements of legality and proportionality, applicable to fines under Article 49 of the Charter. That case-law may suggest that the objective of Article 23(2) is not limited to purely punitive purposes, with the result that the scope of that provision should not be limited solely to cases requiring the setting of a higher ceiling for the determination of the fine.

69.      The Commission contends that that ground of appeal must also be rejected as unfounded.

2.      Assessment

70.      As a preliminary point, I note that, as is apparent from point 55 of the present Opinion, the General Court essentially ruled out the application of the third subparagraph of Article 23(2) of Regulation No 1/2003, on the ground that the factual conditions required by that provision were not satisfied. Therefore, a different conclusion cannot be reached without a reassessment of the facts of the case, which is excluded at the appeal stage.

71.      The following analysis, relating to the second ground of appeal, is therefore proposed for the sake of completeness.

72.      In that regard, I note that the General Court, in paragraph 48 of the judgment under appeal, held that the third subparagraph of Article 23(2) of Regulation No 1/2003 codifies, in essence, the settled case-law of the Court of Justice and of the General Court which allows, in certain specific cases, account to be taken of the turnover of the undertakings which are members of an association, where its turnover does not reveal either its size or its economic power, in order to prevent the deterrent effect of fines imposed in respect of infringements of the EU competition rules from being undermined.

73.      As I stated in points 24 and 25 of the present Opinion, those assertions are well founded and, in my view, cannot be challenged by the various arguments put forward by the appellants.

74.      First, as regards the argument that it is apparent from paragraph 97 of the judgment in Coop de France bétail et viande that the turnover of the members of an association may be taken into account, not only in order to ensure a deterrent effect, but also for other purposes, such as the fact that the members participated in the infringement, that the infringement concerns their activity and that it is engaged in directly for the benefit of the members, it must be stated that the reading of that judgment as proposed by the appellants clearly remains incomplete and selective, in so far as it omits to mention that the Court, in paragraph 96 of the judgment in Coop de France bétail et viande, expressly stated that the option for the Commission to take account of the turnover of the members of the association is relevant where that turnover is not proportionate to its activities and size, precisely ‘in order to determine a sanction which is deterrent’. Moreover, it is important to point out that the central nature of the deterrent effect in the decision to take into account members’ turnover was reaffirmed in paragraph 123 of the ‘Lithuanian notaries’ judgment.

75.      Second, the complaint alleging infringement of Article 49 of the Charter, concerning the proportionality of the penalty imposed, must be rejected since the fine was calculated on the basis of the actual turnover which Conserve Italia had generated on the market concerned by the infringement. Therefore, and contrary to what the appellants claim, having reference to Conserve Italia’s turnover from the products contributed by each agricultural holding, apart from the fact that there is no legal basis for that, would not adequately reflect the size and economic power, as conceived of by the EU legislature, of the entity responsible for the infringement, namely Conserve Italia.

76.      Consequently, I propose that the second ground of appeal be rejected as inadmissible or, in any event, unfounded and that the appeal therefore be dismissed in its entirety.

VII. Costs

77.      In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since, in my view, the appellants should be unsuccessful in their grounds of appeal, I propose that they be ordered to pay the costs.

VIII. Conclusion

78.      In the light of the foregoing considerations, I propose that the Court of Justice should:

–        dismiss the appeal, and

–        order Conserve Italia – Consorzio Italiano fra cooperative agricole  Soc. coop. agr. and Conserves France SA to bear their own costs and to pay those incurred by the European Commission.

1      Original language: French.

2      European Economic Area Agreement of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’).

3      OJ 2022 C 412, p. 6. The consolidated version of the Commission Decision (available only in Italian) can be found at: https://ec.europa.eu/competition/antitrust/cases1/202244/AT_40127_8594806_3044_5.pdf

4      Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

5      OJ 2006 C 210, p. 2.

6      More specifically, those two agreements consisted in the fixing of selling prices, the coordination of the pricing policy and structure, the allocation of volume quotas and market shares, the allocation of customers and markets, the coordination of tenders and price offers to be submitted to retailers or customers in the food service industry, the coordination of other sales conditions and rebates, including marketing strategy and promotional policy, as well as the communication and exchange of commercially sensitive information (see paragraph 8 of the judgment under appeal).

7      See, as regards the determination of the amount of the fine, recitals 577 to 683 of the decision at issue, to which the General Court refers in paragraphs 17 to 23 of the judgment under appeal. That fine was determined as follows: The Commission found, first of all, that the value of the sales of canned vegetables concerned by the infringement referred to in the preceding paragraph was approximately EUR 40 million. It then applied to that amount a rate of 18% to take account of the seriousness of that infringement and then, on the basis of the sum thus obtained, made several adjustments relating to the duration of the infringement and the objective of deterrence, which led it to a ‘basic amount’ of the fine of approximately EUR 102 million. The latter amount was subsequently reduced to EUR 81 million on account of particular mitigating circumstances. However, finding that, even reduced, that amount exceeded the statutory ceiling of the fine, set at 10% of the last total consolidated turnover of the entity concerned (that is to say, approximately EUR 797 million), in accordance with the second subparagraph of Article 23(2) of Regulation No 1/2003 (approximately EUR 80 million), the Commission reduced it to that ceiling. Finally, the Commission then applied two significant additional reductions (one by 50% and the other by 49.83%) to the amount thus obtained in order to take account, respectively, first, of Conserve Italia’s contribution in the context of its leniency application and, second, of the finding that, in the absence of a reduction, the fine would ‘irretrievably jeopardise the economic viability’ of the appellants (in accordance with point 35 of the Guidelines on the method of setting fines).

8      In the context of the first plea, the appellants criticised the Commission for having set the ceiling of the amount of the fine on the basis of the Conserve Italia group’s total consolidated turnover during the business year preceding the date of the decision at issue (that is approximately EUR 800 million), pursuant to the second subparagraph of Article 23(2) of Regulation No 1/2003, whereas it should have taken account of Conserve Italia’s turnover in the same period only in relation to the agricultural holdings which contributed the agricultural products referred to in the decision at issue, in accordance with the third subparagraph of Article 23(2) of that regulation (that is approximately EUR 57 million). In that regard, the Commission, in the decision at issue, wrongly classified Conserve Italia as an ‘undertaking’ and not as an ‘association of undertakings’ and, consequently, wrongly refused to apply the provisions relating to the determination of the ceiling of the fine applicable to associations of undertakings.

9      In the context of the second plea, which was divided into four parts, the appellants challenged, under those provisions, the determination of the basic amount of the fine as regards, first, the value of sales taken into account, second, the taking into account of the seriousness of the infringement, third, the taking into account of the duration of the infringement and, fourth, the application of an additional amount for deterrence.

10      See, to that effect, judgment of 3 September 2024, Illumina and Grail v Commission (C‑611/22 P and C‑625/22 P, EU:C:2024:677, paragraph 116 and the case-law cited).

11      Emphasis added.

12      See judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98, paragraphs 59 to 62), and Opinion of Advocate General Léger in Wouters and Others (C‑309/99, EU:C:2001:390, point 61).

13      Council Regulation of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition: Series I Volume 1959-1962, p. 87). That regulation merely provided in Article 15(2) thereof that the Commission could ‘impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement …’ (emphasis added).

14      See, to that effect, judgments of 23 February 1994, CB and Europay v Commission (T‑39/92 and T‑40/92, EU:T:1994:20, paragraphs 136 and 137); of 21 February 1995, SPO and Others v Commission (T‑29/92, EU:T:1995:34, paragraph 385); and of 14 May 1998, Finnboard v Commission (T‑338/94, EU:T:1998:99, paragraphs 270 and 282), upheld on appeal by the judgment of 16 November 2000, Finnboard v Commission (C‑298/98 P, EU:C:2000:634; ‘the judgment in Finnboard’).

15      See the judgment in Finnboard (paragraph 66) (emphasis added). See also Order of the President of the Court of 23 March 2001, FEG v Commission (C‑7/01 P(R), EU:C:2001:183, paragraph 11).

16      Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87, presented by the Commission (COM(2000) 582 final) (OJ 2000 C 365 E, p. 284).

17      See Report of the European Parliament of 21 June 2001 on the proposal for a Council regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and amending Regulations (EEC) No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and (EEC) No 3975/87 – Committee on Economic and Monetary Affairs (A5-0229/2001).

18      See, to that effect, judgment of 18 January 2024, Lietuvos notarų rūmai and Others (C‑128/21, EU:C:2024:49, paragraph 125; ‘the “Lithuanian notaries” judgment’), in which the Court confirms that that provision constitutes a ‘codification’ of that case-law.

19      Judgment of 18 December 2008, Coop de France bétail et viande and Others v Commission (C‑101/07 P and C‑110/07 P, EU:C:2008:741; ‘the judgment in Coop de France bétail et viande’).

20      See the judgment in Coop de France bétail et viande (paragraphs 94 and 98), and the ‘Lithuanian notaries’ judgment (paragraphs 123 to 125). See, also, paragraph 11 of the Order of the President of the Court 23 March 2001, FEG v Commission (C-7/01 P(R), EU:C:2001:183) according to which: ‘such an approach is based on the idea that the influence which an association of undertakings has been able to exercise on the market does not depend upon its own turnover, which reveals neither its size nor its economic power, but rather upon its members' turnover, which constitutes an indication of its size and its economic power’.

21      See, to that effect, judgment of 26 January 2017, Laufen Austria v Commission (C‑637/13 P, EU:C:2017:51, paragraph 47 and the case-law cited).

22      See, to that effect, judgment of 7 June 1983, Musique Diffusion française and Others v Commission (100/80 to 103/80, EU:C:1983:158, paragraphs 119 to 121).

23      See judgment of 26 November 2013, Groupe Gascogne v Commission (C‑58/12 P, EU:C:2013:770, paragraphs 48 and 49 and the case-law cited).

24      See paragraphs 29 to 32 of the judgment under appeal, in which the General Court rejected the first plea, holding that the Commission was right to find that Conserve Italia was an ‘undertaking’ within the meaning of the second subparagraph of Article 23(2) of Regulation No 1/2003, since it is common ground that it carries out an economic activity consisting of offering products for sale, inter alia on the market for canned vegetables.

25      See paragraph 28 of the appeal, which states that ‘on the correct assumption that Conserve Italia must be classified as an undertaking on account of the exercise of an economic activity on the market, the General Court hastened to conclude that all the arguments put forward by the appellants seeking to demonstrate the specific characteristics of that undertaking deserve to be rejected a priori because they were merely ineffective’ (emphasis added).

26      See judgment of 25 March 2021, Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239, paragraphs 98 and 99 and the case-law cited). A party cannot put forward for the first time before the Court of Justice, in an appeal, a plea in law which it has not raised before the General Court, since that would amount to allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. New pleas that have not been submitted to the General Court must therefore be declared inadmissible at the appeal stage.

27      The first plea of the application at first instance was entitled: ‘First plea in law, alleging infringement of Article 101(1) TFEU, the third subparagraph of Article 23(2) of Regulation No 1/2003 and point 33 of the Guidelines on account of an error of fact and of law in so far as Conserve Italia is classified as an “undertaking” rather than an “association of undertakings” and a defect in the determination of the statutory ceiling of the fine’ (emphasis added). See also paragraph 81 of the application before the General Court, according to which ‘the Commission erred in fact and in law in classifying Conserve Italia as an undertaking instead of classifying it as an association of undertakings for the purposes of applying Article 101(1) TFEU and Article 53 of the EEA Agreement’. See also paragraph 173 of the application before the General Court, in which the appellants state that ‘it is not possible to subscribe to the view that Conserve Italia should be classified as an undertaking for the purposes of competition law and, more specifically, in order to calculate the statutory ceiling of the fine, since, under national (civil and tax) and European law, it is, on the contrary, an instrument of an association of agricultural producers carrying on activities in the interest and solely for the benefit of the members, who are responsible for its control’.

28      Conserve Italia starts from the premiss that ‘Article 23(2) of Regulation No 1/2003 provides for two different methods of calculation depending on whether the infringement of competition law was committed by an undertaking (second subparagraph) or by ‘an association of undertakings’ (third subparagraph)’ (see, in that regard, paragraph 86 of the application before the General Court). Such a reading of those provisions fails to take account of the fact that the second subparagraph also refers expressly to ‘associations of undertakings’.

29      See paragraph 58 of the reply before the General Court, according to which ‘when faced with the dichotomy between “undertaking” and “association of undertakings” of Conserve Italia, the Commission gave precedence to the former of the two classifications and unjustifiably ignored the latter’.

30      In paragraph 16 of the reply before the General Court, the appellants argued that ‘since Conserve Italia was (apparently indisputably) classified as an “association of undertakings”, the Commission should have determined whether the case described in the second subparagraph of Article 23(2) or that described in the third subparagraph of Article 23(2) of Regulation No 1/2003 best corresponded to the operating mechanisms of an agricultural cooperative structured like Conserve Italia’ (emphasis added).

31      According to the appellants, those specific features, which distinguish Conserve Italia from capital undertakings or mono-product cooperative societies, should have led the General Court to determine the amount of the fine in accordance with the third subparagraph of Article 23(2) of Regulation No 1/2003.

32      See, by analogy, judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955, paragraph 65 and the case-law cited). As regards cooperative societies, that follows both from the case-law of the Court (see, by analogy, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 55) and EU legislation (see Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (OJ 2003 L 207, p. 1) and Communication from the Commission to the Council and the European Parliament, the European Economic and Social Committee and the Committee of the Regions on the promotion of co-operative societies in Europe, COM(2004) 18 final).

33      See judgment of 2 April 2009, France Télécom v Commission (C‑202/07 P, EU:C:2009:214, paragraph 29 and the case-law cited).

34      See judgment of 21 December 2023, United Parcel Service v Commission (C‑297/22 P, EU:C:2023:1027, paragraph 47). See also, to that effect, judgment of 2 September 2021, Ja zum Nürburgring v Commission (C‑647/19 P, EU:C:2021:666, paragraph 36 and the case-law cited).

35      See judgment of 4 October 2024, Ferriere Nord v Commission (C‑31/23 P, EU:C:2024:851, paragraph 172 and the case-law cited).

36      See judgment of 21 December 2023, European Superleague Company (C‑333/21, EU:C:2023:1011, paragraph 112 and the case-law cited).

37      In paragraphs 34 and 35 of the judgment under appeal, the General Court held that, in the light of settled case-law, the Commission had rightly pointed out, in recital 647 of the decision at issue, that, even if Conserve Italia could also be regarded as an ‘association of undertakings’ within the meaning of Article 101 TFEU, given that its members were undertakings or associations of undertakings, that fact had no bearing on its classification as an ‘undertaking’.

38      See points 29 to 32 of the present Opinion.

39      See paragraphs 99 to 167 of the application before the General Court, under the heading ‘Conserve Italia is an association of undertakings’.

40      See application before the General Court (paragraphs 84, 99 and 100).

41      See application before the General Court (paragraph 99).

42      See application before the General Court (paragraphs 112 to 121).

43      See application before the General Court (paragraphs 122 to 126).

44      See application before the General Court (paragraphs 127 to 132 and 133 to 135).

45      See application before the General Court (paragraphs 136 to 147).

46      See application before the General Court (paragraphs 148 to 167).

47      Namely, Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297, p. 1), Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), which was repealed by Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and No 1234/2007 (OJ 2013 L 347, p. 671), and Regulation No 1435/2003).

48      See application before the General Court (paragraphs 168 to 173).

49      Those paragraphs refer, to that effect, to the judgments of 16 November 1995, Fédération française des sociétés d’assurance and Others (C‑244/94, EU:C:1995:392, paragraph 20), and of 2 July 1992, Dansk Pelsdyravlerforening v Commission (T‑61/89, EU:T:1992:79, paragraph 52).

50      See, to that effect, judgment of 16 November 1995, Fédération française des sociétés d’assurance and Others (C‑244/94, EU:C:1995:392, paragraph 21).

51      The General Court relies, in that regard, on the fact that the appellants emphasised, on the one hand, the lack of integration among the agricultural holdings and Conserve Italia and, on the other, the holding and central role of the agricultural holdings in the internal structure of Conserve Italia.

52      The General Court found that a series of factors contradicted the appellants’ argument that Conserve Italia lacked autonomy and was merely an instrument for agricultural holdings. First, the General Court notes that it is not disputed that Conserve Italia processes fresh fruit and vegetables supplied to it by agricultural holdings, of which there are approximately 14 000 members of its 34 cooperative partners, in a factory owned and managed by it, and that it sells the processed products to its customers (paragraph 43 of the judgment under appeal). Second, it is clear from the horticultural regulation adopted by Conserve Italia on 26 October 2018, which governs the relationship between Conserve Italia and its partners, that it is Conserve Italia, and not the agricultural holdings, which defines the commercial strategy of the undertaking concerned on the canned vegetable market. Article 1 of that horticultural regulation provides that the board of directors of Conserve Italia is to define the marketing programmes, the quantities and the types of raw materials required. Article 6 of that regulation requires the members of Conserve Italia to use only the seeds which it provides to them (paragraph 44 of the judgment under appeal).

53      Moreover, as the General Court rightly points out in paragraph 15 of the judgment under appeal, the EU courts may not substitute their own reasoning for that of the author of the contested act (see, to that effect, judgment of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 105).

54      See footnote 48 to the present Opinion.

55      In the appeal, the appellants merely assert that their opening remarks concerning the functioning of Conserve Italia ‘should shed light on the distortion of the facts committed by the General Court ...’ without indicating precisely what elements were allegedly distorted by the General Court or how such a distortion is manifestly apparent from the case file (see, to that effect, judgment of 24 October 2024, Commission v Intel Corporation, C‑240/22 P, EU:C:2024:915, paragraph 228).

56      See judgment of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 53).

57      That line of argument appears, in the application before the General Court, under the heading ‘Conserve Italia has a structure comparable to that of organisations of agricultural holdings for which ad hoc European legislation is provided’, which, in turn, constitutes one of the sub-titles of Chapter III.A.4, entitled ‘Conserve Italia is an association of undertakings’. In addition, in paragraph 173 of that application, the appellants claim that: ‘it is not possible to subscribe to the view that Conserve Italia should be classified as an undertaking for the purposes of competition law and, more specifically, in order to calculate the statutory ceiling of the fine, since, under national (civil and tax) and European law, it is, on the contrary, an instrument of an association of agricultural producers carrying on activities in the interest and solely for the benefit of the members, who are responsible for its control’ (emphasis added).

58      See paragraphs 36 and 37 of the reply before the General Court.

59      See, in particular, recital 173 and Article 206 of Regulation No 1308/2013, which state that ‘save as otherwise provided in this Regulation …, Articles 101 to 106 TFEU and the implementing provisions thereto shall, subject to Articles 207 to 210a of this Regulation, apply to all agreements, decisions and practices referred to in Article 101(1) and Article 102 TFEU which relate to the production of, or trade in, agricultural products’.

60      See, to that effect, judgment of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission (C‑154/14 P, EU:C:2016:445, paragraph 39 and the case-law cited).

61      Namely, the turnover from the sale of processed products contributed by all 14 000 agricultural holdings producing tomatoes, pears, peaches, sweetcorn, peas, beans, chickpeas, apricots, apples, green beans, kiwis and lentils.

62      Namely, the turnover from the sale on the market of processed products contributed by 350 agricultural holdings producing only green beans, peas and sweetcorn.

63      In that regard, the appellants point out that the amount paid by Conserve Italia to agricultural holdings is determined by subtracting from the total revenue from the sale of products on the market the costs which the cooperative incurred in processing and marketing that category of products. It follows that the amount invoiced by agricultural holdings is significantly lower than that invoiced for the sale of canned vegetables. That would thus place undertakings which join together in the form of a cooperative in a position of undue advantage over those which decide, on the contrary, to process and market the products themselves. For that reason, the appellants considered it more appropriate to request that Conserve Italia’s turnover be taken into account, provided that it was limited to the products covered by the cartel. In accordance with the principle of transparency, that turnover should, in principle, be regarded as attributable to the agricultural holdings, even if it is through the cooperative mechanism.

64      See, in that regard, points 20 to 22 of the present Opinion.

65      I note, in that regard, that the Commission had taken the view that those agricultural holdings did not act on the market affected by the infringement at issue, namely the canned vegetable market, but on the raw vegetable market, by selling, inter alia, those vegetables to cooperatives which were members of Conserve Italia (see recital 656 of the decision at issue).

66      See paragraphs 175 to 177 of the application before the General Court, according to which the appellants had initially argued that the application of the third subparagraph was required solely because Conserve Italia was an association of undertakings, disregarding the fact that the second paragraph also concerns ‘associations of undertakings’.

67      See footnote 55 to the present Opinion.

68      Which the appellants themselves seem to acknowledge in paragraph 48 of their application: ‘the request to take into account Conserve Italia’s turnover rather than that of agricultural holdings (as required by the wording of the third subparagraph of Article 23(2) of Regulation No 1/2003) follows the need to take into account the specific characteristics of the cooperative sector …’ (emphasis added).

69      I would point out that, in paragraph 179 of their application before the General Court, the appellants had in fact taken as a reference year 2020/2021, namely the year preceding the adoption of the decision at issue, whereas, in their appeal, they proposed as the reference year that corresponding to the last year of participation in the infringement, namely 2012/2013.

70      See recital 639 of the decision at issue.

71      See footnote 6 to the present Opinion.

72      Namely, inter alia, the judgment in Coop de France bétail et viande (paragraphs 97 and 98).