2019:498 Huhtamäki Oyj and Huhtamaki Flexible Packaging Germany GmbH & Co.KG v European Commission

ECLI:EU:T:2019:498

Participation in the constituent elements of the single and continuous infringement in NWE

36      In that regard, it must be borne in mind that, in order to establish that there has been an infringement of Article 101 TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the institution, viewed as a whole, meets that requirement (see judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47 and the case-law cited).

37      It is also necessary to take account of the fact that anticompetitive activities take place clandestinely, that the evidence discovered by the Commission is normally only fragmentary and sparse, and, accordingly, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, paragraphs 55 to 57; of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraphs 70 to 72; and of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 42).

38      Given that the Commission is often required to prove the existence of an infringement several years after the events in circumstances where several of the undertakings involved have not actively cooperated in the investigation process, it would be excessive to require the Commission to produce evidence of the specific mechanism by which the anticompetitive aim was achieved. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced with regard to the operation of an illegal agreement in circumstances in which the existence and anticompetitive purpose of the agreement had nonetheless been sufficiently established (judgment of 12 December 2014, Eni v Commission, T‑558/08, EU:T:2014:1080, paragraph 36).

39      In so far as concerns, in particular, the exchange of information between competitors, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the internal market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 119 and the case-law cited).

40      While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 120 and the case-law cited).

41      In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 122 and the case-law cited).

42      The General Court has already held that the provision of sensitive business information, such as an exchange of future price increases, had — where that information was given to one or more competitors — an anticompetitive effect inasmuch as the independence of the undertakings concerned in their conduct on the market was modified as a result. Where such practices occur, the Commission is not obliged to prove their anticompetitive effects on the relevant market if they are capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market (see judgment of 16 September 2013, Wabco Europe and Others v Commission, T‑380/10, EU:T:2013:449, paragraph 78 and the case-law cited).

43      The Court of Justice has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market took account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court of Justice has concluded that such a concerted practice was caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on the market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 127 and the case-law cited).

The price increase in spring/summer 2002

53      In that regard, it must be recalled that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see judgment of 26 April 2007, Bolloré and Others v Commission, T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02, EU:T:2007:115, paragraph 166 and the case-law cited).

54      It is true that an undertaking which has applied for immunity from fines may have to submit as much incriminating evidence as possible. The fact remains that such an undertaking will also be aware of the potential adverse consequences of presenting inaccurate information, which may in particular result in the loss of immunity after it has been granted. Moreover, the risk of the inaccurate nature of those statements being detected and leading to those consequences is increased by the fact that such statements must be corroborated by other evidence (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 138).

55      Moreover, it should be noted that a declaration made by an undertaking recognising the existence of an infringement committed by that undertaking entails considerable legal and economic risks, including, in particular, that of actions for damages being brought before the national courts, in the context of which the Commission’s establishment of a company’s infringement may be invoked (see, to that effect, judgments of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 140 and 141 and the case-law cited, and of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 153).

56      Finally, it is apparent from the case-law that statements made with a view to benefiting under the Leniency Notice may be corroborated by other statements of that nature, and not solely by other evidence contemporaneous with the facts at issue, namely evidence dating from the time of the infringement (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 191).

65      First, as regards the applicants’ argument that the handwritten notes which were provided by Vitembal do not contain any indication as to their origin, it must be observed, first of all, that those handwritten notes were drawn up on the headed paper of the hotel where the meeting of 13 June 2002, organised alongside that of the EQA on the same date, took place. Next, they could not have been drafted at the meeting of 8 May 2002, as the applicants suggest, since those notes show the presence of Depron and the Huhtamäki Group, that is to say, two undertakings not present at the meeting of 8 May 2002. Finally it is apparent from the case-law that the fact that an item of contemporaneous evidence is undated does not deprive it of all its probative value, in particular where its origin, probable date and content may be determined with sufficient certainty (see, to that effect, judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 94 and the case-law cited).

66      Secondly, as regards the argument that the handwritten notes which were provided by Vitembal were written in German whereas Mr K., an employee of the Huhtamäki Group, does not speak that language, it is sufficient to state, on the one hand, that it was indeed possible for those notes to have been taken in a language other than that of the meeting and, on the other, that Mr B., another employee of that group also present at that meeting, does speak German inasmuch as he was employed in Germany, as per the Commission’s submissions, which were not disputed by the applicants.

67      Thirdly, the applicants submit that the information concerning the Huhtamäki Group in the handwritten notes which were provided by Vitembal was not disclosed by the employees of that group, Mr K. or Mr B., it being noted that those notes contain information on prices of the same type concerning two other companies, even though it is common ground that those other two companies did not attend the meeting of 13 June 2002 organised alongside that of the EQA on the same date. However, in order to reject that argument, it is sufficient to observe, as the Commission rightly points out, that those companies are mentioned in those notes only in respect of a single point, without any reference to specific prices, contrary to what the applicants claim. On the other hand, the name of the Huhtamäki Group or, to be more precise, its other names such as ‘Polar’ and ‘Polarcup’, are referred to on several occasions with exact prices in respect of certain specific goods and countries. The fact that those notes do not specify the identity of the representatives of that group in no way justifies the applicants’ denials with regard to the presence of that group at that meeting.

68      In the light of the foregoing, it must be held that the evidence adduced by the Commission is sufficient to demonstrate the presence of the Huhtamäki Group at the meeting of 13 June 2002 organised alongside that of the EQA on the same date. The statement made by Vitembal in the context of the Leniency Notice and the handwritten notes which were provided by Vitembal corroborate the declaration supplied by Linpac.

The alleged failure to contribute to the common objectives of the cartel and lack of awareness of its general scope and essential characteristics

127    According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 47 and the case-law cited).

128    An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 48 and the case-law cited).

129    An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 49 and the case-law cited).

130    Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. On the other hand, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the conduct in fact implemented by other participating undertakings does not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of an identical object distorting the normal pattern of competition within the internal market (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 50 and the case-law cited).

The Commission’s alleged failure to address, in the contested decision, the applicants’ arguments relating to the issue of a single and continuous infringement

146    According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 9 September 2015, Philips v Commission, T‑92/13, not published, EU:C:2015:605, paragraph 102 and the case-law cited).

147    The Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned; it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (see judgment of 9 September 2015, Philips v Commission, T‑92/13, not published, EU:C:2015:605, paragraph 103 and the case-law cited).

The third plea in law: the Commission infringed the principles of proportionality and equal treatment, its own Guidelines on the setting of fines, and the duty to state reasons, by failing to consider, when determining the fines to be imposed on the applicants, individual circumstances which warranted reductions of those fines

The complaint concerning the gravity weighting

163    In that regard, it must be borne in mind that, pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe the provisions of Article 101 TFEU and Article 102 TFEU.

164    Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.

165    Points 19 to 23 of the 2006 Guidelines state as follows:

‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.

20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.

21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.

22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’

166    Lastly, as regards the alleged infringement of the principle of proportionality, it should be recalled that, according to the case-law, that principle requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 5 May 1998, United Kingdom v Commission, C‑180/96, EU:C:1998:192, paragraph 96).

167    In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, judgment of 12 September 2007, Prym and Prym Consumer v Commission, T‑30/05, not published, EU:T:2007:267, paragraph 224 and the case-law cited). In particular, that principle requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (judgments of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 228, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 171).

168    As regards cartels, which are considered to be the most serious infringements, the Court has held, after observing that, under point 23 of the 2006 Guidelines, since the proportion of the value of sales taken into account will generally be set ‘at the higher end of the scale’, the rate should, at the very least, be above 15% (see, to that effect, judgment of 16 June 2011, Ziegler v Commission, T‑199/08, EU:T:2011:285, paragraph 141).

The complaint alleging the existence of mitigating circumstances

180    In that regard, it should be recalled that the Court of Justice has held that the General Court correctly held that it was open to the Commission to take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement or when adjusting the basic amount of the fine according to the mitigating and/or aggravating circumstances (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 103).

181    According to settled case-law, the grant of a reduction of the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. To recognise a mitigating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if it were discovered they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 101(1) TFEU (see, to that effect, judgment of 9 July 2009, Archer Daniels Midland v Commission, C‑511/06 P, EU:C:2009:433, paragraphs 104 and 105 and the case-law cited).

182    Point 29 of the 2006 Guidelines states as follows:

‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:

– where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount; …’

183    As is apparent from point 29 of the 2006 Guidelines, the Commission is under no obligation always to take account separately of each of the mitigating circumstances listed: it ‘may’ reduce the basic amount. Although the circumstances in the list in that point 29 are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances; the appropriateness of any reduction of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances.

184    In the present case, as regards the applicants’ argument that the Commission should have taken into consideration the allegedly sporadic and limited nature of the participation of the Huhtamäki Group in the cartel in question, and the fact that that group was absent at certain meetings and the alleged absence of responsibility for collusion in respect of the ‘Nordic countries’, it must be recalled, as is apparent from the analysis of the second plea, that the Commission was right to take the view that that group had participated in a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement relating to foam trays and rigid trays in NWE.

185    Next, as regards the applicants’ argument alleging failure to implement the cartel, it must be rejected. In that regard, on the one hand, it is apparent from recitals 804 and 1032 of the contested decision that the Commission did not increase the gravity weighting of the infringement in question by taking account of the implementation of the cartel, even though it considered that the arrangements had, in general, been implemented. On the other hand, the applicants have not established that they opposed that cartel to the point of disrupting its smooth functioning, a requirement which is however set out in the case-law in order for non-implementation justifying a reduction of the amount of the fine in respect of mitigating circumstances to be recognised. According to the case-law, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. The fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (see, to that effect, judgments of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 248 and the case-law cited, and of 9 September 2015, Panasonic and MT Picture Display v Commission, T‑82/13, EU:T:2015:612, paragraph 178 (not published)).

188    Even assuming that, by their arguments which, in essence, consist of suggesting the minor and limited nature of the Huhtamäki Group’s involvement in the infringement at issue, the applicants seek to establish that the role of that group was exclusively passive in the cartel, it must be noted, first, that, although that fact was expressly mentioned as a possible mitigating circumstance in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3), it is no longer one of the mitigating circumstances which can be used when applying the 2006 Guidelines. That therefore manifests a deliberate political choice to no longer ‘encourage’ passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy (see, to that effect, judgment of 9 September 2015, Panasonic and MT Picture Display v Commission, T‑82/13, EU:T:2015:612, paragraph 181 (not published)).

189    Moreover, an ‘exclusively passive or follow-my-leader’ role in the infringement implies, by definition, that the undertaking concerned will adopt a ‘low profile’, that is to say not actively participate in the creation of any anticompetitive agreements (see, to that effect, judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraph 167). It is clear from case-law that one factor that may indicate that an undertaking has played a passive role in a cartel is where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel; another is where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, regard being had to all the relevant circumstances of the individual case (see judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraph 168 and the case-law cited).

The fourth plea in law: the Commission infringed Articles 101 TFEU, 53 EEA and 23(2) of Regulation No 1/2003 in finding the first applicant to be jointly and severally liable with its former subsidiaries for infringements committed in France and SWE

212    It should be pointed out that the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 54 and the case-law cited).

213    In such a situation, since the parent company and its subsidiary form part of a single economic unit and thus form a single undertaking for the purpose of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company without being required to establish its individual involvement in the infringement (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 55 and the case-law cited). In other words, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necessarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 88).

214    Moreover, the Court has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence ( the ‘presumption of actual exercise of decisive influence’) (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 56 and the case-law cited).

215    The purpose of the presumption of actual exercise of decisive influence is, in particular, to strike a balance between, on the one hand, the importance of the objective of suppressing conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties must be specific to the offender, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that the presumption is rebuttable (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 59). It follows that such a presumption is proportionate to the legitimate aim pursued (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 108).

216    Accordingly, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent actually exercises decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 57 and the case-law cited).

217    A parent company may be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (judgments of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, EU:T:1999:80, paragraph 989, and of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 52).

218    Moreover, it has been held that the presumption of actual exercise of decisive influence also applied where the parent company held the capital of its subsidiary, not directly, but, as in the present case, through other companies (see, to that effect, judgments of 20 January 2011, General Química and Others v Commission, C‑90/09 P, EU:C:2011:21, paragraph 86, and of 15 July 2015, GEA Group v Commission, T‑45/10, not published, EU:T:2015:507, paragraph 142).

219    In addition, the presumption of actual exercise of decisive influence is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, by dint of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found. In those circumstances, if, in order to rebut that presumption, it were sufficient for a party concerned to put forward mere unsubstantiated assertions, the presumption would be largely robbed of its usefulness (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 60 and 61).

220    In order to rebut the presumption of actual exercise of decisive influence, a parent company must, in the context of the actions against a Commission decision, put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are such as to demonstrate that they do not constitute a single economic entity (see judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 32 and the case-law cited).

221    Moreover, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary is insufficient to rule out the possibility that the parent company did in fact exercise a decisive influence over that subsidiary (see, to that effect, judgment of 13 July 2011, Shell Petroleum and Others v Commission, T‑38/07, EU:T:2011:355, paragraph 70).

222    It should be pointed out that, while the Court of Justice, in its case-law, has referred to other circumstances, such as the absence of any challenge to the influence exercised by the parent company over the commercial policy of its subsidiary and the joint representation of the two companies during the administrative procedure, the fact remains that such circumstances have not been identified with the aim of making the implementation of the presumption subject to the production of additional evidence that the parent company in fact exercised influence. In other words, the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and effectiveness of that presumption (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 80 and the case-law cited).

223    In the contested decision, the Commission held jointly and severally responsible, on the one hand, the first applicant and Huhtamäki Embalagens for the infringement in SWE from 7 December 2000 to 18 January 2005 and, on the other hand, the first applicant and Coveris for the infringement in France from 3 September 2004 to 24 November 2005.

224    The direct participants in the infringements in SWE and France were Huhtamäki Embalagens and Coveris respectively. Throughout the duration of the infringements, the first applicant indirectly held 100% of the shares in the two abovementioned companies. Accordingly, the Commission presumed that the first applicant had exercised a decisive influence over the conduct of its subsidiaries which were directly involved in the two abovementioned infringements.

225    In the present case, it must be observed that, by the present plea, the applicants do not dispute the fact that the first applicant indirectly held 100% of the capital of Coveris and Huhtamäki Embalagens throughout the duration of the infringements in SWE and France. However, they claim that the first applicant did not in fact exercise a decisive influence over its subsidiaries during those infringements.

226    Moreover, the applicants do not challenge the factual assessment contained in the contested decision that there were economic, organisational and legal links between the first applicant and its subsidiaries. Nor do they comment on the evidence referred to in that decision. They merely claim an alternative version of the facts, without really providing evidence capable of rebutting the presumption of actual exercise of decisive influence.

227    First of all, as regards the applicants’ argument that Coveris and Huhtamäki Embalagens formed one and the same undertaking for the purposes of EU competition law, given that Coveris had the power to determine Huhtamäki Embalagens’s commercial strategy, and that the two companies were acting on the basis of a common commercial strategy, defined by Mr A., an employee of Coveris, it suffices to note that the fact that a subsidiary enjoys a degree of commercial autonomy is not in itself sufficient to establish that it does not form a single undertaking with its parent company within the meaning of Article 101 TFEU (see, to that effect, judgment of 8 May 2013, Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 64).

228    Next, the applicants’ argument that the two subsidiaries of the first applicant were distinguished by an exceptional degree of commercial autonomy and carried out their own daily commercial operations, thus operating autonomously, must also be rejected. Operational independence does not, in itself, prove that a subsidiary decides upon its conduct on the market independently of its parent company. The division of tasks between subsidiaries and their parent companies and, in particular, the fact that the local management of a wholly owned subsidiary is entrusted with operational management is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 49 and the case-law cited).

229    That approach is justified, moreover, by the fact that, in the case of a subsidiary which is wholly, or almost wholly, owned by a sole parent company, there is in principle a single commercial interest and the members of the subsidiary’s bodies are designated and appointed by the sole shareholder, which may give them at least informal instructions and impose performance criteria on them. In such a case, therefore, there is necessarily a relationship of confidence between the management of the subsidiary and the management of the parent company and the management of the subsidiary necessarily acts by representing and promoting the only commercial interest that exists, namely the interest of the parent company. Thus, the unity of the market conduct of the parent company and of its subsidiary is ensured in spite of any autonomy conferred on the management of the subsidiary as regards its operational management, which comes within the definition of the parent company’s commercial policy in the strict sense. As a general rule, moreover, it is the sole shareholder that defines, on its own and according to its own interests, the procedure whereby the subsidiary takes decisions and that determines the extent of the subsidiary’s operational autonomy, which it may change on its own initiative by amending the rules governing the functioning of the subsidiary or in the context of a restructuring, or indeed by setting up informal decision-taking structures. Therefore, as a general rule, the management of the subsidiary thus ensures that the subsidiary’s commercial conduct complies with that of the rest of the group in the exercise of their autonomous powers (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 50 and the case-law cited).

230    Furthermore, the mere fact that the share capital of two separate commercial companies belong to the same company, and, in the present case, to the first applicant, is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under EU competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other (see, to that effect, judgment of 2 October 2003, Aristrain v Commission, C‑196/99 P, EU:C:2003:529, paragraph 99).

231    That conclusion cannot be called into question either by the fact that there had been no overlap of personnel between the parent company and subsidiaries, or by the differences between the technologies used within the Huhtamäki Group.

232    Finally, the Court must also reject the applicants’ argument that the interests of the first applicant and those of its two subsidiaries in question were not aligned during the periods of infringement, in particular because, during those periods, it was involved in a restructuring process.

233    In that regard, it should be noted that the exercise of decisive influence by the parent company over its subsidiary is not incompatible with a decision by the parent to divest itself of that subsidiary or part of the assets of that subsidiary. An undertaking may evolve, by acquiring new companies and integrating them into the existing structure or, conversely, by transferring them to third parties and, consequently, separating the existing structure from a greater or lesser part of the company. However, what matters for the attribution of liability for an infringement of the competition rules is the composition of the undertaking in question during the period to which the infringement relates. The fact that a subsidiary has been sold shortly after the infringement period does not necessarily mean that, during that period, its parent company did not influence its commercial policy decisively (see, to that effect, judgment of 23 January 2014, Evonik Degussa and AlzChem v Commission, T‑391/09, not published, EU:T:2014:22, paragraph 94).

234    Consequently, the applicants’ arguments alleging that the first applicant did not exercise a decisive influence over its two subsidiaries in question, namely Coveris and Huhtamäki Embalagens, during the period of the infringements in France and SWE and, consequently, the fourth plea in law, must be rejected as unfounded.

235    In addition, as regards the applicants’ request that the Court reduce the amount of the fines imposed on them, it must be borne in mind, in that regard, that, according to the case-law, the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the Court, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).

236    Furthermore, the exercise of that jurisdiction does not amount to a review of the Court’s own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 76 and the case-law cited).

237    Moreover, in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited).

1. Dismisses the action;
2. Orders Huhtamäki Oyj and Huhtamaki Flexible Packaging Germany GmbH & Co KG to pay the costs.

1. Idot, Laurence: Cartels (1), Europe 2019 Mois Comm. nº 10 p.31-32 (FR)