C-279/98
ECLI:EU:C:2000:259
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OPINION OF MR MISCHO — CASE C-279/98 P
O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 18 May 2000 *
1. On 23 July 1998 Cascades SA (herein- 4. In its appeal, the appellant claims that after 'Cascades') lodged an appeal against the Court of Justice should: the judgment of the Court of First Instance of 14 May 1998 in Cascades v Commis- sion 1 (hereinafter 'the contested judgment') seeking to have that judgment set aside.
'— set aside the judgment of the Court of 2. Cascades had sought the annulment of First Instance of 14 May 1998 in Case Commission Decision 94/601/EC of T-308/94 Cascades v Commission; 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/ 33.833 — Cartonboard) 2 (hereinafter 'the Decision'), in which the Commission imposed fines on 19 manufacturers supply- ing cartonboard on the Community market on the ground that they had infringed Article 85(1) of the EC Treaty (now Arti- cle 81(1) EC). A fine of ECU 16 200 000 had been imposed on Cascades. — uphold the submissions made by Cas- cades SA before the Court of First Instance;
3. For the views expressed by the appellant and the Commission before the Court of First Instance, and for the grounds on which the Court dismissed the application, I refer you to the contested judgment. — order the Commission to pay all the costs, in respect of the proceedings * Original language: French. before the Court of First Instance and 1 — T-308/94 ECR II-925. the proceedings before the Court of 2 — OJ L 243, p. 1. Justice.
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In the alternative: 7. Firstly, the appellant considers that the grounds of the contested judgment are inconsistent, in so far as the Court of First Instance did not draw the proper conclu- sions from its own findings concerning the inadequacy of the statement of reasons for — if it were to consider that it is not the Commission Decision in respect of the possible to give a final judgment in the determination of the general level of the proceedings, refer the case back to the fines. Court of First Instance to be reheard;
— reserve costs.' 8. Secondly, it maintains that the Court misinterpreted the concept of effects of the infringement on the market and, in any event, infringed the principle of propor- tionality by not reducing the level of the fine imposed by the Commission, even 5. The Commission contends that the though it pointed out that the Commission Court should: had not proved all the effects which it took into account in determining the general level of the fines.
'— reject the appeal;
9. Thirdly, the appellant considers that the Court of First Instance infringed the prin- — in the alternative, refer the case back to ciple of non-discrimination in so far as it the Court of First Instance for judg- approved the criteria according to which ment; the Commission attributed liability for the conduct of undertakings transferred during the period of infringement.
— in any event, order the appellant to pay the costs.' 10. Since the first two pleas have also been put forward by most of the undertakings in the cartonboard sector which have lodged appeals against the respective judgments of 6. In support of its appeal, the appellant the Court of First Instance, I have consid- submits three pleas. ered these pleas only once, that is, in the
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Opinion I have delivered in the appeal 14. The appellant infers from this that a brought by the company Mo och Domsjö group which acquires a subsidiary which AB (Case C-283/98 P). has participated in the infringement may be treated in two radically different ways depending on whether or not the transferor has participated in the infringement: the transferee will be responsible for paying the 11. In that Opinion I reached the conclu- fine in respect of the subsidiary's conduct sion that these two pleas could not be before the transfer if the transferor group upheld. has not participated in the infringement; otherwise, it will not be responsible for the subsidiary's conduct and will not pay the fine. Application of these criteria would therefore lead to obvious discrimination between two transferees. The third plea: infringement of the princi- ple of non-discrimination
12. According to the appellant, the Court of First Instance infringed the principle of non-discrimination by approving the cri- 15. Applying the abovementioned criteria, teria applied by the Commission in respect the Court of First Instance held Cascades of responsibility for the conduct of under- responsible for the conduct of its two takings acquired during the period of subsidiaries Van Duffel NV (hereinafter infringement. 'Duffel') and Djupafors AB (hereinafter 'Djupafors') prior to their acquisition, although, in Case T-347/94, 3Mayr-Meln¬ hof Kartongesellschaft mbH (hereinafter 'Mayr-Melnhof') was not considered 13. The appellant also maintains that it is responsible for the conduct of its subsidiary apparent from point 145 of the statement Mayr-Melnhof Eerbeek (hereinafter 'Eer- of reasons of the Decision that responsi- beek') in the period preceding its acquisi- bility for the conduct of a subsidiary prior tion, the responsibility for which was to its transfer may be attributed to the attributed to NV Koninklijke KNP BT subsidiary itself if it has participated on an (hereinafter 'KNP'), the transferor group individual basis in the infringement, or may which had participated in the infringement. be attributed to the transferor group if this group has been a party to the infringement. Furthermore, according to point 143 of the statement of reasons for the Decision as interpreted by the Court of First Instance, if a subsidiary has itself infringed Community law on an individual basis and the acquir- 16. Nevertheless, the situations of Cas- ing group has participated in the infringe- cades and Mayr-Melnhof are wholly com- ment, the Commission could hold that parable. Both cases involve a company group liable for payment of the fine in respect of the conduct of the subsidiary prior to its acquisition. 3 — Mayr-Melnhof v Commission [1998] ECR II-1751.
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which acquired one or more subsidiaries 19. The appellant denies that its plea is which had participated, prior to their inadmissible. It contends that, if it was not acquisition, in an infringement. The only raised before the Court of First Instance, difference between the two situations lies in that was because the criteria followed by the possible participation of the transferor the Commission were particularly confus- prior to the transfer. According to the ing and their precise scope could only be appellant, this circumstance, over which defined during the proceedings before the the acquirer has no control and of which it Court. might even be unaware, does not justify one of the transferee groups being treated differently.
20. In this connection, it should be pointed out, first of all, that, in the proceedings before the Court of First Instance, the appellant had submitted the plea that 'the 17. The appellant therefore asks the Court conduct of Duffel and Djupafors prior to of Justice to set aside the contested judg- their acquisition cannot be attributed to ment in so far as it held Cascades respon- Cascades.' sible for the conduct of its subsidiaries Duffel and Djupafors prior to their acqui- sition and, if it considers that the proceed- ings permit final judgment to be given, to annul the Decision on the same ground. 21. That plea was based on two arguments or complaints:
— the Commission had incorrectly Admissibility of the plea applied its own criteria;
18. The Commission submits, first of all, — alternatively, the statement of reasons that the situation of which the appellant on that point was inadequate and complains existed before the action was contradictory. brought before the Court of First Instance. The third plea is therefore a new plea; under Article 42(2) of the Rules of Proce- dure of the Court of Justice, which is rendered applicable to appeals by Arti- cle 118, no new plea in law may be 22. It was in relation to these two argu- introduced during the course of proceed- ments that the Court of First Instance ings. expressed its view.
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23. Admittedly, in the second subpara- It is therefore a fortiori inadmissible on graph of point 94 of the reply it presented appeal. before the Court of First Instance, the appellant had stated as follows:
25. Finally, the Commission observes that 'Cascades' argument, in which it alleged 'In this respect, it should be pointed out that it had experienced difficulty in under- that when a company which has belonged standing the criteria for attributing respon- to a group of which one or more companies sibility laid down by the Commission, have participated in the infringement is would not be enough to justify the intro- transferred to another group, the Commis- duction of a new plea during proceedings, sion considers that "responsibility for the even less so during appeal proceedings. period up to the date of divestment prior to Cascades knew, from the time the Decision the transfer does not pass to the acquirer was adopted, the facts which have led it to but will remain with the first group" (the submit this plea. The two situations which second indent of point 145 of the Decision; Cascades is comparing in order to try and for a case in which this was applied, see the establish unequal treatment were clearly set position of KNP Vouwkarton BV Eerbeek out in points 147, 150 and 162 of the which belonged first to the KNP group and Commission Decision. If Cascades consid- then to the Mayr-Melnhof group, ered that there was unequal treatment, it points 149 and 150 of the Decision). By could have, and therefore should have, put contrast, the Commission takes the view forward this plea in its application at first that if the acquired company participated instance' (point 20 of the Commission's in the infringement in its own right before rejoinder). its acquisition, the acquiring group must bear the responsibility for its unlawful conduct if one or more of the other companies in the group also participate in the infringement. This constitutes unequal 26. What are we to make of this? treatment which, in the appellant's view, is unjustified.'
27. In the contested judgment, the Court of First Instance did not make a substantive ruling on the appellant's argument alleging 24. The Commission points out that the 'difference in treatment', nor did it hold appellant uses here the expression 'unjusti- that the argument constituted a new plea in fied unequal treatment' not infringement of law which was inadmissible because it had the principle of non-discrimination. It been presented only during the course of argues that the passage I have just quoted the proceedings. appears only in the reply submitted by the appellant before the Court of First Instance and that, therefore, in so far as it invokes the principle of non-discrimination, it con- stituted a new plea in law presented to the 28. Under Article 51 of the EC Statute of Court and was, accordingly, inadmissible. the Court of Justice, appeals are restricted
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to points of law and must be based on lack 31. Article 42(2) of the Rules of Procedure of competence of the Court of First of the Court of Justice states that 'no new Instance, a breach of procedure before it plea in law may be introduced in the course or infringement of Community law by the of proceedings'. 6 Court of First Instance. Article 112(1)(c) of the Rules of Procedure of the Court of Justice stipulates that an appeal shall con- tain 'the pleas in law and legal arguments 4 relied on'.
32. Under Article 118 of the Rules of Procedure, Article 42(2) applies 'to the procedure before the Court of Justice 7on appeal from a decision of the Court of First Instance'.
29. As the Court of Justice has held, particularly in its order in Del Plato v Commission, 5'It follows from those pro- visions that an appeal must indicate pre- cisely the contested elements of the judg- ment and the legal arguments supporting 33. This text unquestionably refers to the the application to have it set aside. Accord- new pleas in law introduced before the ing to settled case-law, that requirement is Court of Justice after the appeal is lodged. not satisfied by an appeal which confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Court of First Instance...'.
34. But does it also refer to the insertion in the application initiating the appeal of any other argument than those contained in the application lodged with the Court of First Instance? 30. In order to be admissible, an appeal must therefore contain some new legal arguments. However, this is inevitable since, in an appeal, criticism is levelled at the judgment of the Court of First Instance, which itself represents a new aspect in relation to the written and oral proceedings 35. It appears to me, in the first place, that, brought before that Court. if this were the case, any appeal would be
4 — Emphasis added. 6 — Emphasis added. 5 — Case C-31/95 P, [1996] ECR I-1443, paragraphs 19 and 20. 7 — Emphasis added.
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condemned in advance as inadmissible aside, in whole or in part, the decision of since it would inevitably be based on the Court of First Instance, but must seek arguments amounting to: the same form of order, in whole or in part, as that sought at first instance, and shall not seek a different form of order (Arti- cle 113 of the Rules of Procedure of the Court of Justice).
— either new pleas in law, which are prohibited by the aforementioned pro- vision;
39. Nor is it possible, on appeal, to put forward, in relation to the decision which is at the root of the whole dispute, a com- — or a word for word repetition of the plaint which has not already been pleaded pleas in law already presented before before the Court of First Instance. the Court of First Instance.
36. Secondly, it is clear from Article 51 of the EC Statute of the Court of Justice that 40. This is not the situation in the present an appeal may be based on new pleas in case, since the appellant is still acting law such as the fact that the Court of First within the framework of the complaint Instance exceeded its jurisdiction, that (or plea in law) introduced before the breaches of procedure were committed Court of First Instance, namely that 'the during the proceedings at first instance, or conduct of Duffel and Djupafors prior to that the Court of First Instance infringed their acquisition cannot be attributed to Community law when ruling on the pleas Cascades'. It is not, therefore, introducing a in law introduced before it. completely new issue.
37. I consider that the solution to the problem therefore lies in applying the 41. The appellant had also pleaded before following criteria. the Court of First Instance, in its reply, 'the difference in treatment between two trans- feree companies', which it maintained was the consequence of the Commission's argu- ment. Since the Court of First Instance did not express its opinion on that argument, 38. An appeal cannot alter the subject- the appellant cannot be criticised for com- matter of the dispute. It may seek to set ing back to it.
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42. The fact that it now gives the argument 44. In point 143 of the statement of rea- a more formal significance by stating that it sons for the Decision, the Commission constitutes an infringement of the principle explains that, as far as concerns the 'actions of non-discrimination and describing it as a of what are said to be autonomous sub- plea in law is not enough, in my view, to sidiaries, the Commission has, in principle, declare it inadmissible. What we are really treated the entity named in the membership seeing is the development of a legal argu- lists of the PG Paperboard as the appro- ment which has already been presented and priate "undertaking" for the purposes of is still part of one of the complaints or pleas addressing the present proceedings, subject in law introduced at first instance. to the following exceptions:
(1) where more than one company in a group participated in the infringement Assessment of the third plea in law, regard- ing the substance of the case
or 43. Point 147 of the statement of reasons for the Decision is worded as follows:
(2) where there is express evidence impli- cating the parent company of the group 'Prior to their acquisition by Cascades in in the participation of the subsidiary in 1989, Kartonfabriek Van Duffel and Dju- the cartel, the proceedings have been pafors AB were participants in the cartel as addressed to the group (represented by independent undertakings. But for the the parent company)'. acquisition, proceedings could have been addressed to both undertakings in their own name. Duffel and Djupafors were renamed and continued to exist as separate subsidiaries in the Cascades group. How- ever, it is appropriate to address this Decision to the Cascades group represented 45. In paragraph 148 of the contested by Cascades SA in respect of the participa- judgment, the Court of First Instance held tion in the infringement of all of Cascades' that 'where, prior to its acquisition, a cartonboard operations (see recital 143).' company has participated in its own right
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in the infringement, the identity of the 47. Cascades does not deny that it is liable addressee of the Decision, that is to say, for the infringements committed by Duffel whether that should be the transferred and Djupafors after it had acquired them. company or the new parent company, is determined solely by the criteria set out in point 143.'
48. On the other hand, it considers that it was wrongly required to pay a fine in 46. It then states, in paragraphs 157 to respect of the conduct of those companies 159: during the period prior to their acquisition.
'Finally, as regards the correctness of the attribution to the applicant of the unlawful 49. It points out that no fine was imposed conduct of Djupafors and Duffel prior to on Mayr-Melnhof in respect of the conduct their acquisition, it suffices to point out of its subsidiary, Eerbeek, during the period that there is no dispute that at the time prior to acquisition, although the criteria when those two companies were acquired contained in the contested judgment could they were participating in an infringement also be applied to the relations between in which the applicant was also participat- Mayr-Melnhof and Eerbeek. ing by virtue of the involvement of Cas- cades La Rochette and Cascades Blendec- ques.
50. Liability for Eerbeek's previous con- duct was attributed to the transferor com- In those circumstances, the Commission pany, KNP, which was itself involved in the was entitled to attribute to the applicant cartel. the conduct of Djupafors and of Duffel in respect of the period before and the period after their acquisition by the applicant. It was for the applicant, as parent company, to adopt in regard to its subsidiaries any measure necessary to prevent the continua- tion of the infringement of which it was 51. The Commission and the Court of First aware. Instance accepted that Mayr-Melnhof 'was responsible for Eerbeek's conduct' only from the time that company 'was under the applicant's control'. 8
Having regard to the foregoing, this plea 8 — See the judgment in Mayr-Melnof, referred to above, must be rejected.' paragraphs 400 to 405.
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52. Cascades claims the same treatment in simply taken over by Cascades but carried respect of its two subsidiaries, by invoking on their activities, although under a new the principle of non-discrimination. corporate name, as independent subsidi- aries.
53. I propose that the Court should uphold its claim. What we have here, in fact, are two identical situations which have been treated differently. Prior to acquisition, 57. The Commission contends that it is not neither Mayr-Melnhof nor Cascades con- possible to detect unequal treatment in its trolled the conduct of the companies which Decision. It states that, in the only case in were subsequently to become their respec- which another company affected by its tive subsidiaries. Decision was in the same position as Cascades and Duffel and Djupafors, it was treated in exactly the same way. That was the undertaking Deisswil, 66% of whose share capital was acquired by Mayr-Melnhof in 1990. As the Commis- sion states in point 55 of its reply, 'Mayr- 54. If Mayr-Melnhof is not held responsi- Melnhof was held responsible, just like the ble for Eerbeek's conduct, then Cascades appellant and for the same reasons, for the should not be held responsible for the unlawful conduct in respect of conduct conduct of Duffel and Djupafors. prior to and after acquisition, and for the other subsidiary, only in respect of conduct after acquisition. It therefore received the same treatment as the appellant and was subject to the same principles, with an identical outcome in the case of one of its subsidiaries, and a different one in the case of the other, because the situation was not 55. Eerbeek's conduct was determined by the same.' KNP. It was therefore reasonable to hold KNP responsible for the infringement com- mitted by Eerbeek.
56. The conduct of Duffel and Djupafors 58. However, this argument cannot be was the consequence of their own deci- upheld. The fact that the Commission made sions. Therefore they alone should be held the same mistake twice in the same Deci- responsible for it, since they were not sion does not nullify the mistake.
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59. It is not disputed that, prior to their independent, it must itself be held respon- acquisition, Eerbeek, Deisswil, Duffel and sible for those infringements. Djupafors were in exactly the same posi- tion in relation to the undertakings which were to become their parent companies: their conduct was not yet determined by those undertakings. 63. This view finds support in the case-law of the Court of Justice referred to in the Opinion which I have delivered today in the appeal brought by the company Stora Kopparbergs Bergslags AB, 10 in which I state that, even if an undertaking is a 60. The question we are considering here wholly owned subsidiary of another under- must be settled according to the principle: taking, and the latter may therefore have a 'where there is power, there is responsi bil- decisive influence on its subsidiary's com- ity'. mercial policy, responsibility for the in- fringements committed by the subsidiary can be attributed to the parent company only if there is at least some evidence that the parent company has actually exercised that power. 61. In its judgment in Enichem v Commis- sion, 9 the Court of First Instance expressed the principle as follows:
64. Now, in the present case, the Court of First Instance has upheld an argument which is tantamount to saying that even an undertaking which has no shares in the 'When such an infringement is found to capital of another undertaking, and which have been committed, it is necessary to cannot be shown to have exercised power identify the natural or legal person who over it by any other means, 1 1must never- was responsible for the operation of the theless assume responsibility for the in- undertaking at the time when the infringe- fringements the latter undertaking has ment was committed so that it can answer committed. for it.'
65. I therefore propose that the Court of Justice should declare that the Court of 62. I conclude from this that, in every case First Instance erred in law by holding in which an undertaking, which has subse- quently become a subsidiary, committed infringements while it was still wholly 10 — Case C-286/98 P. 11 — For example, because the other undertaking was only the 'sales counter' of several paperboard-producing undertak- ings. See the Opinion I have delivered today in Case 9 — Case T-6/89 [1991] ECR II-1623, paragraph 236. C-294/98 P Metsä-Serla and Others v Commission.
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Cascades responsible for the infringements 68. For the reasons stated above, point (b) committed by Duffel and Djupafors prior must not be taken into consideration. to their acquisition, and should set aside However, we do not know precisely what the contested judgment to that extent. influence it had on the final conclusion reached by the Commission and then the Court of First Instance. We cannot, there- fore, reduce the fine merely by making a subtraction. Consequently, it is necessary 66. Should a ruling now be given in this for another hearing to be held before the case or should it be referred back to the Court of First Instance and the case should Court of First Instance? be referred back to that Court.
67. The fine of ECU 16 200 000 imposed on Cascades is the result of several factors: 69. It is for the Commission to decide whether it should send a statement of objections to the companies which took over financial and operational responsibil- ity for Duffel and Djupafors and possibly (a) the involvement of the parent company impose fines on them in respect of the in the cartel, as 'ringleader' during the infringements committed by Duffel and period from mid-1986 to April 1991; Djupafors during the period before they came under the control of Cascades.
(b) the involvement of Duffel and Djupa- fors in the cartel from mid-1986 until their acquisition by Cascades in March 1989; Costs
(c) the involvement of Duffel and Djupa- 70. Under Article 121 of the Rules of fors in the cartel from this last date Procedure of the Court of First Instance, onwards. that Court is to decide on the costs.
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Conclusion
71. In the light of the foregoing arguments, I propose that the Court should:
(1) set aside the judgment of the Court of First Instance of 14 May 1998 in Case T-308/94 Cascades v Commission in so far as it:
— holds the appellant responsible for the infringements committed by Van Duffel NV and Djupafors AB during the period between mid-1986 and February 1989 inclusive;
— rejects the appellant's claim for a reduction of the fine;
— orders the appellant to pay the costs.
(2) dismiss the remainder of the appeal.
(3) refer the case back to the Court of First Instance.
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