OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 19 July 2012 ( 1 )
Case C-286/11 P
European Commission
v
Tomkins plc
‛Agreements, decisions and concerted practices — European market for copper and copper alloy fittings — Fines — Joint and several liability of the parent company for the actions of its subsidiary — Ne ultra petita rule — Classification of the action at first instance — Unlimited jurisdiction of the General Court — Consideration of all the factual circumstances — Compliance with the rule that the parties should be heard’
I – Introduction
1.
By the present appeal, the European Commission seeks to have set aside the judgment of the General Court of 24 March 2011 in Tomkins v Commission ( 2 ) (‘the judgment under appeal’) by which that Court partially annulled Commission Decision 2007/691/EC of 20 September 2006 relating to a proceeding under Article 81 of the Treaty establishing the European Community and Article 53 of the EEA Agreement (Case COMP/F/38.121 Fittings) ( 3 ) (‘the contested decision’), concerning, during the period between 31 December 1988 and 1 April 2004, a cartel consisting in price-fixing, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating customers and exchanging other commercial information in the European market for copper fittings, in particular copper alloy fittings, and reduced the amount of the fine imposed on Tomkins plc (‘Tomkins’), for payment of which that company had been held jointly and severally liable with its subsidiary, Pegler Ltd (‘Pegler’).
2.
Making express reference to the case which gave rise to the judgment delivered on the same day in Pegler v Commission, ( 4 ) in respect of the action brought by Tomkins’ subsidiary, by which the General Court annulled Article 1 of the contested decision inasmuch as it found that Pegler had participated in the infringement during the period from 31 December 1988 to 29 October 1993, and reduced the amount of the fine imposed on that company from EUR 5.25 million to EUR 3.4 million, the General Court considered the consequences to be drawn from that judgment with regard to the parent company Tomkins.
3.
Notwithstanding the fact that Tomkins contested Pegler’s participation in the infringement only in respect of the period prior to 7 February 1989 (and not, as Pegler had done, up to 29 October 1993), the General Court held that the liability of Tomkins, as Pegler’s parent company not directly involved in the cartel, could not exceed that of its subsidiary. Taking the view that it had before it an action for annulment, in which the forms of order sought had the same object as that in the action brought at the same time by Pegler, the General Court, denying that it was ruling ultra petita, also annulled, in point 1 of the operative part of the judgment under appeal, Article 1 of the contested decision in so far as it related to the period from 31 December 1988 to 29 October 1993 as regards Tomkins and, in point 2 of the operative part, reduced the amount of the fine imposed on Tomkins to EUR 4.25 million, in respect of which it was jointly and severally liable with Pegler as to EUR 3.4 million.
4.
The Commission puts forward five grounds in support of its appeal: a breach by the General Court of the ne ultra petita rule; the erroneous finding that the actions brought by the parent company Tomkins and its subsidiary Pegler had the same object; the failure of the General Court to take account of the fact that Tomkins was part of an undertaking which admitted committing an infringement; a failure to state reasons and contradictions in the judgment under appeal; and, lastly, a breach of the rule that the parties should be heard and of the right to a fair hearing.
5.
Tomkins contends that the appeal should be dismissed.
6.
Following a written question put to them by the Court, to which the parties replied within the period prescribed, the parties also presented their oral arguments at the hearing on 2 May 2012.
II – Assessment
7.
I should like to make clear from the outset that the Commission’s second ground of appeal ought in my view to be accepted, leading to the partial setting aside of the judgment under appeal. I consider that the General Court erred in describing Tomkins’ action at first instance as an action for annulment in which the form of order sought had the same object as that in the parallel action brought by its subsidiary Pegler. I shall therefore first examine that ground of appeal. My assessment will primarily include clarification of the pleas put forward by Tomkins before the General Court and an account of the procedure before that Court.
A – The second ground of appeal: the erroneous finding that the action brought by the parent company Tomkins and that brought by its subsidiary Pegler had the same object
8.
It should first of all be noted that, in Article 1 of the contested decision, the Commission found that Pegler and Tomkins had infringed Article 81 EC from 31 December 1988 up to 22 March 2001. In Article 2(h) of that decision the Commission therefore imposed on them a fine of EUR 5.25 million, for the payment of which the parent company Tomkins and the subsidiary company Pegler were held jointly and severally liable.
9.
Pegler and Tomkins each brought separate actions before the General Court against the contested decision.
10.
It is common ground that, in the case which gave rise to the judgment in Pegler v Commission, the form of order sought requested the General Court to annul the contested decision and, in the alternative, reduce the amount of the fine imposed on Pegler.
11.
It should be noted that, in its action brought against the contested decision on 15 December 2006, Tomkins, for its part, claimed that the General Court should annul that decision and reduce the amount of the fine imposed on it by the Commission under Article 2(h) of the contested decision. In support of its action, Tomkins had raised four pleas, the first three of which concerned the issue of the imputability to Tomkins of infringements by Pegler, and the fourth of which alleged ‘legal and factual errors in [the] computation of the fine’. ( 5 ) That plea was divided into two parts, the first alleging an error of assessment with regard to the increase in the amount of the fine for the purpose of deterrence on the basis of Tomkins’ turnover, the second alleging an error on the Commission’s part in the determination of the duration of Pegler’s infringement.
12.
As stated in paragraph 23 of the judgment under appeal, on 22 December 2009 Tomkins withdrew its first, second and third pleas and the first part of its fourth plea.
13.
Hence, all that remained for consideration by the General Court was the second part of the fourth plea, which, although alleging an error in the determination of the duration of the infringement, formed part of a plea seeking reduction of the amount of the fine imposed on Tomkins.
14.
After Tomkins’ partial withdrawal of its pleas, it was thus no longer possible, in my view, for the General Court to take the view that the action before it was still an action for annulment of the finding of the infringement contained in Article 1 of the contested decision. It ought, rather, to have acknowledged the fact that Tomkins’ claim for the annulment of that article of the contested decision was no longer supported by any pleas, and that in any event Tomkins’ application was, under Article 229 EC and Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, ( 6 ) merely an application for the General Court to exercise its unlimited jurisdiction with regard to the amount of the fine imposed by the Commission in Article 2(h) of the contested decision.
15.
To classify Tomkins’ application at first instance in that manner, as the General Court ought to have done, was not only possible but necessary.
16.
First, there was no procedural obstacle to the General Court’s finding that, after Tomkins had withdrawn most of its pleas, that application was no more than an application for the Court to exercise its power to amend the amount of the fine.
17.
Admittedly, the EC Treaty does not establish an ‘action under the unlimited jurisdiction of the Court’ as an independent legal remedy and therefore appears to make the exercise of unlimited jurisdiction dependent on compliance with the period of time within which an application for annulment must be brought. ( 7 ) Consequently, an application for amendment lodged after such a period has expired is inadmissible.
18.
However, in the present case, it is common ground that the period laid down in Article 230 EC was indeed respected when Tomkins’ action was brought before the General Court on 15 December 2006, before that company withdrew its pleas alleging that Article 1 of the contested decision was unlawful.
19.
Besides, after Tomkins withdrew most of its pleas it was not in any way possible for the General Court to declare Tomkins’ application, thus delimited, to be inadmissible, both because the admissibility of an action must be assessed at the time when it is brought ( 8 ) and because it would be incompatible with the proper administration of justice to declare an application inadmissible after one of the parties has withdrawn certain of the pleas supporting the form of order which it seeks, inter alia, in order to ensure the prompt dispensation of justice.
20.
Moreover, situations can be found in case-law in which applications for amendment have been submitted to the General Court independently of any action for annulment and the European Union Court has not considered that factor to constitute an obstacle preventing it from ruling on the merits of the application. ( 9 )
21.
Secondly, the fact that the second part of the fourth plea which Tomkins raised before the General Court concerned an error in the determination of the duration of the infringement does not mean that it contained, in addition to the points of criticism concerning the calculation of the amount of the fine, an application for annulment of Article 1 of the contested decision establishing an infringement of Article 81 EC.
22.
It is true that the duration of the infringement constitutes a factor which is common to the finding of an infringement under Article 81 EC and to the setting of the amount of fines, as provided for in Article 23(3) of Regulation No 1/2003.
23.
None the less, while it is possible to accept that a request to the General Court for annulment of the Commission’s finding of an infringement of Article 81 EC might involve, even implicitly, asking it to cancel or reduce the amount of the fine set by the Commission, ( 10 ) it is not possible, in my view, to envisage the converse. If such an outcome were to be accepted, it would unreasonably extend the scope of the dispute as defined by the parties.
24.
On this point also, various examples can be found in case-law where the European Union Court, correctly, considered pleas alleging errors of law in the assessment of the duration of an infringement solely for the purposes of reducing the amount of the fine, but without being led to assess such errors in the context of the finding of an infringement by the Commission. ( 11 )
25.
Although I cannot be certain of this, it seems to me that the General Court’s concern was to reach a consistent outcome in its two judgments, that is to say, in the judgment presently under appeal and in that in Pegler v Commission. Once it had annulled Article 1 of the contested decision with regard to Pegler’s participation in the infringement during the period between 31 December 1988 and 29 October 1993, ( 12 ) it found it difficult, in my view, not to proceed in a similar manner with regard to Tomkins, the liability of which as a parent company, in the Court’s opinion, could not exceed that of its subsidiary Pegler. ( 13 )
26.
That concern, however legitimate it might appear, must not, however, lead to a distortion of the actions brought at first instance. In particular, whatever the underlying reasons, it is not for the General Court to assume the role of the parties by seeking, for example, to remedy the shortcomings in their actions or to eliminate inconsistencies in those actions without regard for the legal certainty of the other parties and at the risk of rendering its judgments arbitrary.
27.
Thirdly, as is apparent from the application lodged before the General Court, and as was confirmed by Tomkins at the hearing before the Court of Justice, the fact that that company sought the reduction of the amount of the fine in the second part of the fourth plea is sufficient to confirm the conclusion that it was solely unlimited jurisdiction that it sought to bring into play.
28.
The General Court, in order to keep within the parameters of the forms of order sought, ought therefore to have found merely that that part of the plea could support Tomkins’ claim only for the reduction of the amount of the fine imposed by the Commission in Article 2(h) of the contested decision.
29.
Furthermore, if, following withdrawal of most of its pleas, Tomkins would have retained only the first part of the fourth plea, concerning, it will be recalled, an error of assessment as regards the increase in the amount of the fine for the purpose of deterrence, it is clear that the General Court could have interpreted such an application only as a call for it to exercise its unlimited jurisdiction, without first examining the legality of the contested decision as regards the finding of infringement of Article 81 EC.
30.
It follows from the foregoing that, as the Commission has argued in its second ground of appeal, the object of the form of order sought by Tomkins in Case T-382/06 was not the same as the object of the form of order sought by Pegler in Case T-386/06, since, after most of its pleas had been withdrawn, Tomkins’ action no longer sought annulment of Article 1 of the contested decision.
31.
I therefore propose that the Court should set aside point 1 of the operative part of the judgment under appeal, by which the General Court itself annulled Article 1 of the contested decision in so far as it relates to the period from 31 December 1988 to 29 October 1993 with respect to Tomkins.
32.
There is therefore no need to assess the other grounds of the Commission’s appeal in so far as they concern setting aside that same point of the operative part of the judgment under appeal.
33.
By contrast, it is necessary to examine them in so far as the Commission also requests the Court to set aside point 2 of the operative part of the judgment under appeal, by which the General Court reduced the amount of the fine imposed on Tomkins.
B – The first ground of appeal: breach of the ne ultra petita rule
34.
By its first ground of appeal, the Commission argues that the fines imposed on legal entities belonging to a single undertaking may vary, even if joint and several liability is imposed in respect of a specific part of those fines. Consequently, the joint and several liability of two entities belonging to the same undertaking does not affect application of the principle that a court may not rule ultra petita. At the hearing before the Court of Justice, the Commission reiterated its view that the ne ultra petita rule also covers exercise by the General Court of its unlimited jurisdiction.
35.
Furthermore, according to the Commission, the General Court erred in law by ruling on the plea concerning the duration of the infringement without examining the legal arguments which had been put forward by Tomkins itself concerning the starting date of the infringement and instead merely referring to the outcome of the judgment in Pegler v Commission.
36.
Tomkins submits that the General Court did no more than exercise its unlimited jurisdiction with regard to penalties, in accordance with its case-law, taking into account the facts put forward by the parties to the proceedings. Thus, it argues, the General Court did not infringe the ne ultra petita rule, and it has the power to cancel and/or reduce a fine.
37.
For my part, I consider that the ground put forward by the Commission cannot succeed for the main reason that the ne ultra petita rule, which limits the powers of a court to the questions which have been submitted to it by the parties, plays almost no role in the context of the exercise of unlimited jurisdiction by the European Union Courts under Article 229 EC. ( 14 )
38.
According to well-established case-law, going beyond a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, unlimited jurisdiction authorises the General Court to vary that measure, that is to say, to substitute its own appraisal for that of the Commission, even without annulling that measure, by taking into account all of the factual circumstances, so as to cancel, reduce or increase the amount of the fine imposed. ( 15 )
39.
Thus, in Groupe Danone v Commission, the Court rejected a ground of appeal alleging that the General Court had infringed the ne ultra petita rule by altering the method used in applying the weighting for attenuating circumstances when it had not been requested to do so, merely on the ground that, since the question of the amount of the fine had been submitted for its consideration, the General Court was entitled, in the context of the application of Article 229 EC and Regulation No 17/62 of the Council of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty, ( 16 ) superseded by Regulation No 1/2003, to cancel, reduce or increase the amount of the fine imposed by the Commission. ( 17 )
40.
That assessment is easily understood if the function of unlimited jurisdiction is thought of as being an additional guarantee for undertakings, providing the maximum level of review by an independent and impartial judicial body of the amount of the fine imposed on them. ( 18 )
41.
This description of the General Court’s unlimited jurisdiction as an ‘additional guarantee’ has already been confirmed by the Court of Justice when defining the scope of the rights of defence of undertakings before the Commission with regard to the imposition of fines. ( 19 )
42.
In the present context, it can only mean that, provided the amount of the fine is contested before the General Court, it is possible for undertakings, being fully aware of the precise amount set by the Commission, to raise any objections, with regard to both the legality and the appropriateness of the calculation of that amount by the Commission, with the result that they may influence, by any plea in defence, beyond the constraints inherent in the review of legality, the view of the Court as regards the appropriate amount of the fine. ( 20 )
43.
In order for that function as an additional guarantee to be effective, the General Court must, inter alia, be authorised, according to the case-law cited in point 38 above, to take into account ‘all of the factual circumstances’, ( 21 ) including, for example, circumstances occurring after the decision which is contested before it, ( 22 ) something which the constraints inherent in the review of legality would not, in principle, permit it to do. ( 23 )
44.
In the present case, the General Court could not ignore its own findings in respect of Tomkins’ subsidiary in Pegler v Commission, in which it held that the Commission had not shown that Pegler had participated directly in the infringement during the period from 31 December 1988 to 29 October 1993. Those findings, based on documents contained in the Commission’s administrative file, most definitely constituted factual circumstances in the context of the assessments made in the judgment under appeal which the General Court was entitled to take into account, in the light of the abovementioned case-law.
45.
Contrary to what the Commission maintained at the hearing before the Court of Justice, the General Court did not, in that regard, raise a plea in law of its own motion, which, according to the judgments which the Court of Justice delivered on 8 December 2011, ( 24 ) would be prohibited even in the context of the exercise of unlimited jurisdiction, ( 25 ) but merely took into account all the factual circumstances on the file, including therefore its own findings made in the parallel proceedings concerning Tomkins’ subsidiary, in order to assess the appropriateness of the amount of the fine imposed on Tomkins, as that company had submitted in the second part of its fourth ground.
46.
As to the remainder, no relevance can be attached to the Commission’s criticism that the finding that Tomkins and Pegler were jointly and severally liable did not permit the General Court to circumvent the ne ultra petita rule even when exercising its unlimited jurisdiction. As I have just demonstrated, the General Court was not obliged to comply with that rule in that context.
47.
I therefore propose that the first ground of the Commission’s appeal should be rejected.
C – The third ground of appeal: the failure of the General Court to take account of the fact that Tomkins was part of an undertaking which admitted committing an infringement
48.
According to the Commission, which refers to the judgment in Pegler v Commission, Pegler’s liability for the infringement was reduced because of its status as a ‘dormant subsidiary’ and not because the Tomkins group had not participated in the infringement. The fact that Pegler may not have been the correct addressee of the contested decision within the group for a certain period concerns only that subsidiary and does not exonerate the entire undertaking from its liability for infringing the competition rules. Hence, it was not lawful for the General Court to reduce the amount of Tomkins’ fine for the period between 20 January 1989 and 29 October 1993 on the ground that ‘Tomkins’ liability [was] strictly linked to that of Pegler’ on the basis of such a link which does not exist. In any event, the existence of a strict link of liability between the parent company and the subsidiary is not an absolute rule.
49.
I am in full agreement with the Commission when it claims that the strict link of liability established by the General Court between Tomkins and Pegler cannot be regarded as a rule applying in all situations where the liability of a parent company is incurred because of the conduct of its subsidiary.
50.
That, however, is not the key issue, and the General Court at no point claimed in the judgment under appeal that its findings should have universal scope.
51.
In reality, the present ground of appeal, as Tomkins stated, is merely an application to the Court for a review of the General Court’s findings of fact made not only in the judgment under appeal but also in its judgment of the same date in Pegler v Commission, which now has the force of res judicata since the Commission has not appealed against it. Such an application is, of course, inadmissible in the context of an appeal. ( 26 )
52.
Even if it were admissible, the present ground of the appeal would in any event have to be declared unfounded.
53.
It follows, essentially, from the findings made by the General Court that, in the contested decision, Tomkins had been held jointly and severally liable for payment of the fine solely by virtue of Pegler’s direct participation in the infringement. Since the General Court held, both in Pegler v Commission and in paragraphs 37 to 39 of the judgment under appeal, that it had not been shown in the contested decision that Pegler, the only entity named in that decision, had directly participated in the infringement between 31 December 1988 and 29 October 1993, that, logically, deprived of all effect Tomkins’ joint and several liability established in the contested decision. Hence, the General Court correctly found in the judgment under appeal that Tomkins’ liability could not exceed that of Pegler (paragraph 38 in fine) or that it was strictly linked to that of Pegler (paragraph 46).
54.
Furthermore, to no greater extent than it did in the contested decision, the Commission has not stated or, a fortiori, demonstrated that an entity other than Pegler could have participated in the infringement over the period from 31 December 1988 to 29 October 1993 in such a way as to give rise, in respect of that period, to liability on the part of the parent company Tomkins for payment of the fine that was imposed on it in the contested decision.
55.
I propose therefore that this ground of appeal should be rejected.
D – The fourth ground: failure to state reasons and contradictions in the judgment under appeal
56.
The Commission claims that the judgment under appeal is vitiated by a failure to state reasons in that it fails to provide sufficient reasoning for the derogation from the ne ultra petita rule which, it claims, the General Court introduced for the first time. Furthermore, in paragraph 57 of the judgment under appeal, which concerns the multiplier for deterrence, the General Court was, in the Commission’s view, inconsistent and unclear in inviting the Commission to draw the appropriate conclusions from the joint and several liability for the fine as regards Tomkins, before it itself determined the amount of the fine.
57.
This ground of appeal appears to me to be ineffective.
58.
The first complaint cannot succeed since, as I have shown above, the General Court is not required to comply with the ne ultra petita rule in the exercise of unlimited jurisdiction. ( 27 )
59.
As regards the second complaint, I would point out that the General Court did not rule on the first part of Tomkins’ fourth plea, alleging an error of assessment with regard to the increase in the amount of the fine for the purpose of deterrence, for the reason that Tomkins had withdrawn that part.
60.
Consequently, even if the Commission’s criticisms of the General Court’s findings concerning that part were accepted, they would have no consequences as regards the setting aside of point 2 of the operative part of the judgment under appeal, since that point lays down the amount of the fine and does not amend the calculation contained in the contested decision relating to that increase for the purpose of deterrence.
61.
I therefore propose that the fourth ground of appeal should be rejected.
E – The fifth ground: breach of the rule that the parties should be heard and of the right to a fair hearing
62.
According to the Commission, the General Court breached the rule that the parties should be heard and the right to a fair hearing by failing to give it an opportunity to comment on the General Court’s intention to reduce Tomkins’ fine in reliance on pleas which had been raised solely by its subsidiary Pegler in the case which gave rise to the judgment in Pegler v Commission.
63.
Although the General Court did, in my view, vitiate its assessment by a procedural irregularity, that none the less appears to me to be insufficient to set aside point 2 of the operative part of the judgment under appeal.
64.
It should be noted in that regard that, according to case-law, the rule that the parties should be heard, which forms part of the rights of the defence and compliance with which the European Union Courts must safeguard, means, as a general rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court. ( 28 ) In that same context, the Court has also held that a basic principle of law would be infringed if a judicial decision were to be founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment. ( 29 ) Lastly, in order to satisfy the requirements relating to the right to due process, it is important for the parties to be able to exchange arguments on matters of fact and of law which will determine the outcome of the proceedings. ( 30 )
65.
The rule that the parties should be heard must benefit all parties to proceedings before the European Union Courts, irrespective of their legal status. The European Union institutions may also, therefore, avail themselves of that principle when they are parties to such proceedings. ( 31 )
66.
In my view, a European Union Court cannot circumvent that principle when exercising unlimited jurisdiction.
67.
In that regard, the Court of Justice has not only stated that proceedings before the European Union Courts are inter partes, including in the context of unlimited jurisdiction, under Article 229 CE, ( 32 ) but has also reviewed observance of the rights of the defence, which include the principle that the parties should be heard, in the exercise by the General Court of its power to amend the amount of a fine imposed by the Commission. ( 33 )
68.
That approach arises from the rightful concern that the exercise of unlimited jurisdiction must not result in the consideration of facts or criteria which the parties have had no genuine opportunity to discuss. ( 34 )
69.
As I have already stated above in the considerations concerning the non-application of the ne ultra petita rule in the exercise by the General Court of unlimited jurisdiction, that Court is entitled to take into account all the factual circumstances in order to assess the appropriateness of the amount of the fines imposed on undertakings by the Commission. Those circumstances include, in my view, the General Court’s own findings of fact in cases heard at the same time concerning different entities belonging to the same undertaking, as in the present case.
70.
However, such jurisdiction must be exercised in compliance with the rule that the parties should be heard, a rule which the General Court did not observe in the judgment under appeal.
71.
First of all, it is clear that, by the present ground of appeal, the Commission is not merely criticising the General Court for having failed to provide it with the opportunity to comment on the actual principle of reducing the amount of the fine imposed on Tomkins. Indeed, during the proceedings before the General Court it had the opportunity to discuss that question, which was expressly raised by the second part of the fourth plea of Tomkins’ action.
72.
However, it is common ground that the General Court did not at any time, prior to delivery of the judgment under appeal, invite the Commission to submit its observations on the findings made in Pegler v Commission with regard to the absence of direct participation by Pegler in the infringement during the period from 31 December 1988 to 29 October 1993 on the basis of which, in the judgment under appeal, the General Court reduced the amount of the fine imposed on the parent company. ( 35 )
73.
The findings made in Pegler v Commission with regard to the duration of the subsidiary’s participation in the infringement, were undeniably ‘matters of fact … which [would] determine the outcome of the proceedings’ in the judgment under appeal, within the meaning of the case-law cited in point 64 of the present Opinion.
74.
That assessment does not, however, mean that infringement of the rule that the parties should be heard should cause more of the judgment under appeal to be set aside than is proposed in the present Opinion, that is to say, not only point 1 of the operative part of that judgment but also point 2 thereof.
75.
In that regard, pursuant to Article 58 of the Statute of the Court of Justice of the European Union, the Court is to review, as is apparent from case-law, ( 36 ) whether a breach of procedure before the General Court adversely affects the interests of the appellant.
76.
That review concerns, in the present case, the question whether, if the Commission had been in a position to submit observations on the fact that it was not possible for the General Court to take into consideration Pegler’s criticisms concerning the duration of the latter’s participation in the infringement, contained in the parallel case which led to the judgment in Pegler v Commission, those observations might have affected the reduction by the General Court of the amount of the fine imposed on Tomkins in the judgment under appeal.
77.
To my mind, the answer to that question should be in the negative.
78.
As I have already stated above in the assessment of the first ground of the Commission’s appeal, the General Court was entitled, when exercising its unlimited jurisdiction, to take into consideration its own findings in the judgment in Pegler v Commission concerning the duration of the subsidiary’s direct participation in the infringement, for the purposes of deciding on Tomkins’ application for amendment.
79.
Moreover, as stated above in the examination of the third ground of appeal, it was also for that reason that the General Court did not err in law in finding that, in the light of the specific circumstances of the case, Tomkins’ liability for payment of the fine imposed by the Commission could not exceed that of Pegler.
80.
Consequently, even if the Commission had been able to make those submissions to the General Court, those observations would not have been such as might have had a bearing on the reduction in the amount of the fine set in the judgment under appeal.
81.
In those circumstances, I propose that the fifth ground of the Commission’s appeal should be rejected and that the appeal should be dismissed in its entirety in so far as it seeks the setting aside of point 2 of the operative part of the judgment under appeal, by which the General Court reduced the fine imposed on Tomkins from EUR 5.25 million to EUR 4.25 million, in respect of which it was jointly and severally liable with Pegler as to EUR 3.4 million.
III – Conclusion on the appeal
82.
In order to draw a conclusion, as I stated in points 30 and 31 above, the second ground of the Commission’s appeal should be upheld and point 1 of the operative part of the judgment under appeal, by which the General Court annulled Article 1 of the contested decision in so far as it relates to the period from 31 December 1988 to 29 October 1993 with respect to Tomkins, should be set aside.
IV – Examination of Tomkins’ application
83.
Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded and the Court quashes the judgment of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
84.
In the present case, the state of the proceedings undoubtedly permits the Court to give final judgment in the matter. Only the second part of the fourth ground of Tomkins’ action need be examined.
85.
As I have already indicated, that part was merely an application to the General Court for a reduction in the amount of the fine imposed on Tomkins by the Commission in Article 2(h) of the contested decision and could not therefore lead to the annulment of Article 1 of that decision, which concerns the finding that Tomkins had committed an infringement.
V – Costs
86.
Under Article 69 of the Rules of Procedure, which applies by analogy to appeals by virtue of Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 69(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may also order that the costs be shared.
87.
Since the Commission’s appeal will be only partially successful, I consider it appropriate to apply Article 69(3) of those Rules and to order that the parties bear their own costs in both sets of proceedings.
VI – Conclusion
88.
In the light of the foregoing considerations, I propose that the Court should:
(1)
Set aside point 1 of the operative part of the judgment of the General Court of the European Union of 24 March 2011 in Case T-382/06 Tomkins v Commission;
(2)
Dismiss the remainder of the appeal;
(3)
Order the European Commission and Tomkins plc to bear their own respective costs in both sets of proceedings.
( 1 ) Original language: French.
( 2 ) Case T-382/06 [2011] ECR II-1157.
( 3 ) OJ 2007 L 283, p. 63.
( 4 ) Case T-386/06 [2011] ECR II-1267.
( 5 ) See paragraph 3.4 and point (b) of the section setting out the form of order sought in Tomkins’ application to the General Court and the report for the hearing prepared by that Court, annexed to the response to the appeal (Annex PB.5).
( 6 ) OJ 2003 L 1, p. 1.
( 7 ) See, to that effect, the order of the General Court in Case T-252/03 FNICGV v Commission [2004] ECR II-3795, paragraphs 22 and 25.
( 8 ) See judgments in Case 50/84 Bensider and Others v Commission [1984] ECR 3991, paragraph 8, and in Joined Cases C-61/96, C-132/97, C-45/98, C-27/99, C-81/00 and C-22/01 Spain v Council [2002] ECR I-3439, paragraph 23.
( 9 ) See, in that regard, the application for reduction of the amount of the fine in Case T-127/04 KME Germany and Others v Commission [2009] II-1167 and subsequently in Case C-272/09 P KME Germany and Others v Commission [2011] ECR I-12789.
( 10 ) This is something which the Court accepted in Case 8/56 ALMA v High Authority [1957 and 1958] ECR 95, at 100.
( 11 ) See, inter alia, the judgment in Case C-272/09 P KME Germany and Others v Commission, paragraphs 62 to 71, the judgment in Case T-127/04 KME Germany and Others v Commission, paragraphs 100 to 105, and the judgment of 16 November 2011 in Case T-79/06 Sachsa Verpackung v Commission, paragraphs 179 to 181 and 191 to 198, a judgment against which an appeal has been lodged, registered as Case C-40/12 P Gascogne Sack Deutschland v Commission, at present pending before the Court.
( 12 ) Although those judgments were delivered on the same day, the General Court’s constant references, in the case which gave rise to the judgment under appeal, to its judgment in Pegler v Commission show clearly that it views the latter judgment as preceding the former.
( 13 ) On the question of Tomkins’ liability being intrinsically linked to that of Pegler, see my assessment of the third ground of the Commission’s appeal in points 49 to 54 of this Opinion.
( 14 ) See, to that effect, point 49 of the Opinion of Advocate General Poiares Maduro in Case C-3/06 P Groupe Danone v Commission [2007] ECR I-1331.
( 15 ) See, to that effect, Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 692; Groupe Danone v Commission, paragraph 61; and Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraph 86. See also Case T-11/06 Romana Tabacchi v Commission [2011] ECR II-6681, paragraph 265. According to the case-law of the European Court of Human Rights, ‘a judicial body with full jurisdiction is one which has the power to quash in all respects, on questions of fact and law, the contested decision adopted by the lower body. It must, inter alia, have jurisdiction to examine all questions of fact and law relevant to the dispute before it’ (see, most recently, ECHR, Menarini v. Italy, application no 43509/08, judgment of 27 September 2011, § 59, not yet published).
( 16 ) OJ, English Special Edition 1959-1962, p. 87.
( 17 ) See Groupe Danone v Commission, paragraphs 56 and 61 to 63.
( 18 ) See Mengozzi, P., ‘La compétence de pleine juridiction du juge communautaire’, Liber Amicorum en l’honneur de Bo Vesterdorf, Bruylant, Brussels, 2007, p. 227.
( 19 ) See Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 445. See also, inter alia, Case T-83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 235, and Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraph 200.
( 20 ) So far as it is relevant, I would point out that the Court has held on several occasions that review by the General Court of fines imposed by the Commission is designed to assess the appropriateness of the amount of the fine in the light of the circumstances of the dispute before it. See, in that regard, inter alia, Case C-279/98 P Cascades v Commission [2000] ECR I-9693, paragraphs 42 and 48, and Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I-9855, paragraphs 42 and 48.
( 21 ) Emphasis added.
( 22 ) See, in that regard, Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraphs 51 and 52; Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 141; Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II-1181, paragraph 274; and Case T-241/01 Scandinavian Airlines System v Commission [2005] ECR II-2917, paragraph 227.
( 23 ) Which also explains why, for example, in Case 8/83 Officine Bertoli v Commission [1984] ECR 1649, paragraph 29, the Court held that, although the submission relied upon by the applicant in support of its application for a reduction of the amount of the fine imposed upon it could not be upheld, certain circumstances peculiar to that case did justify a reduction on equitable grounds.
( 24 ) Case 272/09 P KME Germany and Others v Commission, paragraph 104; Case C-386/10 P Chalkor v Commission [2011] ECR I-13085, paragraph 64; and Case C-389/10 P KME Germany and Others v Commission [2011] ECR I-13125, paragraph 131.
( 25 ) I am not entirely convinced by this argument. Even if the grounds of the judgments relied on by the Commission must be interpreted as prohibiting the General Court from raising pleas in law of its own motion, that approach appears to sit ill with the authorisation granted to the European Union Courts to circumvent the constraints inherent in a review of legality. In that regard, for example, the Court of Justice has ruled that it was authorised to assess whether a fine was appropriate even where the applicant had made no submission to that effect (see ALMA v High Authority, p. 191; Joined Cases T-202/98, T-204/98 and T-207/98 Tate & Lyle and Others v Commission [2001] ECR II-2035, paragraphs 22 and 164; Case T-321/05 AstraZeneca v Commission [2010] ECR II-2805, paragraph 884, against which an appeal has been lodged, registered as Case C-457/10 P AstraZeneca v Commission, currently pending before the Court). Where there is genuine evidence for doubting whether the amount of a fine is adequate, I consider that the General Court is entitled to amend that amount, subject to observance of the rule that both parties should be heard (see, on that question, my assessment of the fifth ground of appeal in points 63 to 81 below). Amending the amount of a fine in that case would also, in my view, ensure de facto a ‘full and unrestricted review, in law and in fact’ within the meaning, inter alia, of the judgment in Case C-389/10 P KME Germany and Others v Commission, paragraph 136, by an impartial and independent court of the amount of the fines imposed on the undertakings.
( 26 ) See, inter alia, Case C-290/11 P Comap v Commission, paragraph 70 and the case-law cited.
( 27 ) Moreover, the premise on which the exception to the ne ultra petita rule was introduced by the General Court, namely that the forms of order sought by Tomkins and Pegler in their respective actions had the same object, is, as I have shown above, without substance. There is therefore, in my view, no need to adjudicate on the alleged failure to state reasons when the General Court introduced that exception.
( 28 ) See, to that effect, Case C-89/08 P Commission v Ireland and Others [2009] ECR I-11245, paragraphs 50 to 52 and the case-law cited.
( 29 ) Ibid., paragraph 52 and the case-law cited.
( 30 ) Commission v Ireland and Others, paragraph 56, and decision in Case C-197/09 RX-II Review M v EMEA [2009] ECR I-12033, paragraph 41.
( 31 ) Commission v Ireland and Others, paragraph 53, and decision in Review M v EMEA, paragraph 42.
( 32 ) See Chalkor v Commission, paragraph 64, and Case C-389/10 P KME Germany and Others v Commission, paragraph 131.
( 33 ) See Groupe Danone v Commission, paragraphs 70 to 83.
( 34 ) See, to that effect, point 56 of the Opinion of Advocate General Poiares Maduro in Groupe Danone v Commission.
( 35 ) It should be noted that no hearing took place before the General Court and that that Court did not adopt any measure of organisation of procedure with regard to that question before delivering the judgment under appeal, which occurred on the same day as that on which judgment was delivered in Pegler v Commission.
( 36 ) See, inter alia, Commission v Ireland and Others, paragraph 61.
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