Judgment of the General Court (Fourth Chamber) of 16 November 2011 – Groupe Gascogne v Commission
(Case T-72/06)
Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Fines – Maximum limit of 10% of turnover – Proportionality
1. Actions for annulment – Judgment annulling a measure – Effects – Annulment of a Commission decision finding a breach of the competition rules – Effects in relation to addressees not having brought an action – None (Arts 81 EC, 230 EC and 249 EC) (see para. 20)
2. Procedure – Introduction of new pleas during the proceedings – Conditions – Pleas based on matters which have come to light in the course of the procedure – Entry into force of the Treaty of Lisbon – New fact justifying the introduction of a complaint based on infringement of the presumption of innocence – Not included (Art. 6 TEU; Charter of Fundamental Rights of the European Union, Art. 48; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see paras 27-30)
3. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Evidential obligations of a company seeking to rebut that presumption (Art. 81(1) EC) (see paras 66-71, 92)
4. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration – Cumulative turnover of all the companies constituting the economic unit acting as an undertaking – No obligation on the Commission to demonstrate lack of autonomy on the part of each of the subsidiaries of the group (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 106-115)
5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Determination of the fine in proportion to the factors for assessment of the gravity of the infringement (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 128, 130-131)
Re:
APPLICATION for annulment in part of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags), concerning a cartel on the market for plastic industrial bags, and application for amendment of that decision.
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Groupe Gascogne SA to pay the costs.
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