Case T‑640/16

GEA Group AG

v

European Commission

(Competition — Agreements, decisions and concerted practices — Heat stabilisers — Decision establishing an infringement of Article 81 EC — Decision amending the initial decision — Action for annulment — Interest in bringing proceedings — Admissibility — Fines — 10% ceiling — Group of companies — Equal treatment)

Summary — Judgment of the General Court (Fifth Chamber), 18 October 2018

1. Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Commission decision amending a decision imposing a fine for breach of the competition rules — Inclusion in the decision of provisions of a first amendment decision annulled by the General Court — Action brought by an undertaking jointly and severally liable to payment of a fine with its former subsidiaries — Admissibility

   (Arts 101 TFEU and 263, fourth para., TFEU)

2. Actions for annulment — Judgment annulling a measure — Scope — Absolute authority of res judicata — Scope

   (Art. 266 TFEU)

3. Competition — Fines — Joint and several liability for payment — Determination of the share of the fine to be borne by joint and several co-debtors in their internal relationship — No apportionment of the reduction of the fine of a co-debtor between other co-debtors — Failure to observe the principle of equal treatment

   (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Arts 20 and 21)

4. Competition — Fines — Discretion of the Commission — Scope — Power to fix the methods of payment of the fines — Imposition of interest for delay — Scope

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

5. Competition — Fines — Decision imposing fines — Applicability of Article 299 TFEU

   (Arts 101 TFEU and 299 TFEU)

1.  An action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. In order for such an interest to be present, the annulment of that measure must be capable, if successful, of procuring an advantage for the party who has brought that action.

   An action against a Commission decision amending an earlier decision, ordering the applicant and its former subsidiaries jointly and severally to pay fines for anticompetitive behaviour, is admissible since the contested decision was adopted following the General Court’s annulment judgment of a decision whose operative part is exactly the same as that of the contested decision and which amended the provisions of the original decision in terms identical to those of the contested decision, by allocating the amount of fines differently from how they were allocated by those provisions in their original version. First, although not parties to the action brought by the applicant against the decision annulled by the General Court, the former subsidiaries have had, as has the applicant, their respective legal situations affected by that annulment. Second, the legal situation of those subsidiaries with regard to the annulled provisions is connected to that of the applicant, in so far as those provisions are intended to determine the amount of the fines to be imposed on them in respect of the infringements for which they are jointly and severally liable, and the break-down of joint and several liability as between those companies from an external perspective with regard to those fines.

   Moreover, in so far as, in its annulment judgment, the General Court ruled only on the infringement of the applicant’s rights of defence, and not the substantive legality of the contested decision, although Article 1 of that decision and Article 1 of the contested decision contain identical provisions, the action may lead to an allocation of the amount of the fines provided for by those provisions that is more favourable to the applicant.

   (see paras 53, 68, 69, 71-75)

2.  See the text of the decision.

   (see para. 70)

3.  The principle of equal treatment, which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way unless such treatment is objectively justified, is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union.

   As regards a Commission decision allocating the amount of fines imposed jointly and severally on a parent company and two former subsidiaries, ACW and CPA, for anticompetitive behaviour, account must be taken not only of the fine imposed jointly and severally on ACW, CPA and the parent company, but also of the fine imposed jointly and severally on ACW and the parent company for the purposes of determining whether the parties concerned have been treated equally. In that regard, the Commission infringed the principle of equal treatment, without any objective justification, when it did not allocate the reduction of the amount of ACW’s fine proportionately in both cases of joint and several liability in question. First, the parent company and CPA are in a comparable situation, in that they are both companies jointly and severally liable for payment of a fine with ACW. Second, the Commission could certainly have arrived at a different determination of the part of the fine for which ACW and the parent company remained jointly and severally liable, in order to limit the part of the fine for which the latter could be solely liable.

   (see paras 97, 106-109, 111)

4.  See the text of the decision.

   (see para. 117)

5.  The provisions of Article 299 TFEU, according to which measures, particularly those of the Commission which impose a pecuniary obligation, are to apply to decisions of that institution imposing a fine.

   (see para. 118)