GEA Group v Commission (Competition - Agreements, decisions and concerted practices - European markets for tin-based heat stabilisers and for heat stabilisers with epoxidised soybean oil and esters as their base - Judgment) [2023] EUECJ T-640/16RENV (25 January 2023)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> GEA Group v Commission (Competition - Agreements, decisions and concerted practices - European markets for tin-based heat stabilisers and for heat stabilisers with epoxidised soybean oil and esters as their base - Judgment) [2023] EUECJ T-640/16RENV (25 January 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T64016RENV.html Cite as: ECLI:EU:T:2023:18, EU:T:2023:18, [2023] EUECJ T-640/16RENV

(Competition – Agreements, decisions and concerted practices – European markets for tin-based heat stabilisers and for heat stabilisers with epoxidised soybean oil and esters as their base – Application of the ceiling of 10% of turnover to one of the entities forming the undertaking – Annulment of the decision amending the fine imposed in the initial infringement decision – Admissibility – Interest in bringing proceedings – Fines – Limitation period – Concept of an ‘undertaking’ – Joint and several liability for payment of the fine – Rights of the defence – Right to a hearing – Equal treatment – Date by which the fine is payable in the event of amendment – Statement of reasons)

GEA Group AG, established in Düsseldorf (Germany), represented by I. du Mont and C. Wagner, lawyers,

European Commission, represented by P. Rossi, V. Bottka and T. Baumé, acting as Agents,

composed, at the time of the deliberations, of G. De Baere, President, G. Steinfatt (Rapporteur) and K. Kecsmár, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

I. Background to the dispute and events subsequent to the bringing of the action

1 By its action under Article 263 TFEU, the applicant, GEA Group AG, seeks the annulment of Commission Decision C(2016) 3920 final of 29 June 2016 amending Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (AT.38589 – Heat stabilisers) (‘the contested decision’).

2 The applicant was created by the merger, in 2005, of Metallgesellschaft AG (‘MG’) and another company. MG was the ultimate parent company which owned, before 2000, directly or through subsidiaries, the companies Chemson Gesellschaft für Polymer-Additive mbH (‘OCG’) and Polymer-Additive Produktions- und Vertriebs GmbH (‘OCA’).

3 On 17 May 2000, MG sold OCG, which had been renamed Aachener Chemische Werke Gesellschaft für glastechnische Produkte und Verfahren mbH (‘ACW’).

4 Following the dissolution of OCA in May 2000, the business of that company was absorbed by a company named, from 30 August 2000, Chemson Polymer-Additive AG (‘CPA’), which no longer belonged to the group in respect of which the applicant was the ultimate parent company.

5 By Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (Case COMP/38589 – Heat stabilisers) (‘the 2009 decision’), the European Commission found that a number of undertakings had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two sets of agreements and anticompetitive arrangements or concerted practices covering the territory of the EEA and concerning (i) the sector covering tin-based heat stabilisers and (ii) the sector covering heat stabilisers with epoxidised soybean oil and esters as their base (‘the ESBO/esters sector’).

6 Under Article 1(2)(k) of the 2009 decision, the Commission held the applicant liable for infringements committed on the ESBO/esters sector market from 11 September 1991 to 17 May 2000.

7 The applicant was held liable for the entire period of infringement, as the successor of MG, for the infringements committed from 11 September 1991 to 17 May 2000 by OCG and from 13 March 1997 to 17 May 2000 by OCA.

8 In addition, as the successor of OCG, ACW was penalised for the infringement committed by OCG throughout the period of infringement, namely from 11 September 1991 to 17 May 2000, and for the infringement committed by OCA from 30 September 1999 to 17 May 2000, when the latter’s shares were wholly owned by OCG.

9 As the successor of OCA, CPA was penalised for the infringement committed by OCA from 13 March 1997 to 17 May 2000 and for the infringement committed by OCG from 30 September 1995 to 30 September 1999, when the latter’s shares were wholly owned by OCA.

‘For the infringement(s) in the [ESBO/esters sector], the following fines are imposed:

The fines shall be paid in euro within three months of the date of the notification of this decision …

After the expiry of that period, interest shall automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which this Decision is adopted plus 3.5 percentage points.’

11 By application lodged at the Registry of the General Court on 28 January 2010, the applicant brought an action for annulment of the 2009 decision.

12 By judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), the Court dismissed that action. No appeal was brought against that judgment.

13 The attribution of the infringement to the applicant, as established in the 2009 decision, has thus become final.

14 On 15 December 2009, ACW drew the Commission’s attention to the fact that the fine imposed on it in the 2009 decision exceeded the ceiling of 10% of its total turnover laid down in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

15 In those circumstances, on 8 February 2010, the Commission adopted Decision C(2010) 727 final, amending the 2009 decision (‘the 2010 decision’).

16 In the 2010 decision, the Commission found that the fine for which ACW had been found to be jointly and severally liable with the applicant and CPA, on the one hand, and the applicant, on the other, exceeded the ceiling of 10% of its total turnover and it was therefore necessary to amend the 2009 decision.

17 The Commission also stated that the amount of the fine imposed on the applicant and CPA remained unchanged, but that the amount of the fine imposed on ACW should be reduced and the 2010 decision should have no consequences for the other addressees of the 2009 decision.

18 Article 1 of the 2010 decision amended the second paragraph of Article 2 of the 2009 decision as follows:

“31) a) [GEA], [ACW] and [CPA] are jointly and severally liable for EUR 1 086 129;

19 It is apparent from the letter accompanying that decision that the Commission postponed the date by which the fine was payable to three months from the date of receipt of that decision, namely, in the present case, 10 May 2010. The basis for determining the default interest rate was not changed.

20 By application lodged at the Registry of the General Court on 20 April 2010, the applicant brought an action for annulment of the 2010 decision and requested, in the alternative, that the Court alter the amount of the fine imposed on it.

21 By judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the General Court annulled the 2010 decision in so far as it concerned GEA. The Court held that the Commission had infringed that company’s rights of defence by adopting the 2010 decision without first hearing it or giving it access to the file. No appeal was brought against that judgment.

22 By letter of 5 February 2016, the Commission informed the applicant of its intention to adopt a new decision and invited ACW, CPA and the applicant to submit written observations.

23 The applicant submitted its written observations to the Commission on 24 March 2016.

24 By letter of 2 May 2016, the Commission responded to the applicant’s observations.

26 Article 1 of that decision reproduced identically the terms, set out in paragraph 18 above, of Article 1 of the 2010 decision, which amended the second paragraph of Article 2 of the 2009 decision.

27 Article 2 of the contested decision set the date by which the fines were payable at 10 May 2010.

28 Furthermore, the Commission explained in the last sentence of recital 23 of the contested decision that ‘the interest rate to be applied in the event of late payment [was] specified in the last paragraph of Article 2 of the 2009 Decision’ (see paragraph 10 above).

29 By letter of 18 November 2009, the Commission notified the applicant of the 2009 decision and requested payment of the fine within three months of the date of receipt of that letter, namely 19 February 2010.

30 Due to the adoption on 8 February 2010 of the 2010 decision, which reduced the amount of the fine for which ACW was jointly and severally liable with the applicant, and in view of the applicant’s failure to pay the fine, the Commission, by letter of 9 February 2010, again requested the applicant to pay the fine within three months of the date of receipt of that letter, namely 10 May 2010.

31 On 4 May 2010, the applicant informed the Commission that it had organised the provision of bank guarantees with interim effect pending the judgment of the General Court in the actions for annulment in the cases which have since given rise to the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), and to the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

32 On 22 December 2015, the applicant rejected the request made by the Commission to renew the bank guarantees rendered void following the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

33 On 20 January 2016, the Commission informed the applicant that it was still jointly and severally liable for payment of the fine established by the 2009 decision and that the bank guarantees arranged pursuant to the 2010 decision should be released.

34 In addition, by that same letter, the Commission informed the applicant of the forthcoming adoption of a new decision reflecting, so far as concerns those held jointly and severally liable, the reduction of the fine imposed on ACW.

35 By letter of 25 January 2016, the Commission informed the bank concerned that the bank guarantees arranged pursuant to the 2010 decision should be released.

36 On 22 July 2016, the applicant provisionally paid the amount of the fine outstanding after the amounts paid by ACW and CPA, including interest.

37 By letter of 31 October 2018, the applicant requested the Commission to reimburse the amount of the fine provisionally paid by the applicant, including interest. In that regard, it noted that the contested decision, which is the legal basis for the amounts paid, had been annulled by the General Court in the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700; ‘the original judgment’).

38 By letter of 24 January 2019, bearing the reference Ares(2019) 283284, the Commission rejected the request for repayment, explaining, inter alia, that the contested decision was not the legal basis for the amounts paid by the applicant. Since that legal basis was the 2009 decision, which had not been annulled by the General Court, there was no need, according to the Commission, to make such a repayment.

39 By application lodged at the Court Registry on 3 April 2019, the applicant brought an action challenging that decision. By judgment of 9 February 2022, GEA Group v Commission (T‑195/19, not published, EU:T:2022:65), the General Court dismissed that action.

II. Forms of order sought following referral of the case back to the General Court

– in the alternative, reduce the amount of the fine and set a new date for due payment and interest (after adoption of the contested decision); and

– order the applicant to pay the costs incurred in the proceedings T‑640/16, T‑640/16 RENV and C‑823/18 P.

A. Subject matter of the dispute following referral of the case back to the General Court

42 In their observations lodged in the present proceedings following referral of the case back to the General Court, the parties disagree as to the scope of the dispute at first instance following referral.

43 In the first place, the Commission, after referring to the wording of Article 61 of the Statute of the Court of Justice of the European Union, claims, in essence, that there can be no new assessment of claims which were not raised in the initial application and of claims which the General Court rejected on the merits and on which the applicant did not file an appeal or cross-appeal, namely, inter alia, the first part of the fourth plea, which was rejected in paragraphs 98 to 103 of the original judgment.

44 In the second place, the Commission submits, the Court of Justice gave a final ruling on the fourth and fifth pleas of the application at first instance.

45 In addition, it argues, the Court of Justice made findings on a number of issues which have an indirect effect on the other pleas. The Commission contends that the General Court’s assessment must take account of all the relevant points of law arising from the judgment of 25 November 2020, Commission v GEA Group (C‑823/18 P, EU:C:2020:955; ‘the judgment on appeal’). It follows, in particular, that the action at first instance is inadmissible and that, in any event, all the pleas put forward by the applicant at first instance are unfounded.

46 The applicant, by contrast, takes the view that, since it was not challenged by the Commission in its appeal, the General Court’s finding as to the admissibility of the action has the force of res judicata.

47 Moreover, it argues that the Court of Justice did not give a final ruling on the fourth and fifth pleas, but merely decided on the alleged errors of law mentioned in the appeal.

48 In that regard, the question arises whether, in the present referral proceedings, the General Court has before it all the forms of order sought and pleas put forward by the applicant at first instance or whether there are elements of the dispute which have already been definitively settled, either in the original judgment or in the judgment on appeal.

49 It must be recalled that, under Article 61 of the Statute of the Court of Justice of the European Union, where the appeal is well founded and the case is referred back to the General Court for judgment, the latter is bound by the decision of the Court of Justice on points of law.

50 Moreover, once the Court of Justice has set aside a judgment or order and referred the case back to the General Court, the latter is to be seised, pursuant to Article 215 of its Rules of Procedure, of the case by the judgment of the Court of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the force of res judicata (see judgments of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 83 and the case-law cited, and of 7 July 2021, HM v Commission, T‑587/16 RENV, not published, EU:T:2021:415, paragraph 38 and the case-law cited).

51 In the present case, paragraph 1 of the operative part of the judgment on appeal sets aside the original judgment in its entirety, since it states that ‘[the Court of Justice hereby] sets aside the judgment of the General Court of the European Union of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700)’.

52 It follows that the General Court must, in the present case, rule again on all the forms of order sought and pleas put forward by the parties at first instance (see, to that effect, judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraphs 82 and 85).

53 Accordingly, the findings of the General Court as to the admissibility of the action and the first part of the fourth plea do not have the force of res judicata and the Court of Justice has not given a definitive ruling on the second part of the fourth plea or on the first part of the fifth plea. It is therefore for the court to which the case is referred back to give a new ruling both on the admissibility of the action and on all the pleas in law in the light of the judgment on appeal.

54 However, there is nothing in principle to preclude the court to which the case is referred back from making the same assessment as the court at first instance as regards the forms of order and pleas which were not examined in the grounds of the judgment of the Court of Justice. In that situation, there is no decision of the Court of Justice on points of law within the meaning of the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, which would bind the court to which the case is referred back (judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 86).

55 As regards the admissibility of the action, the Commission maintains the arguments which it set out during the proceedings at first instance. It reasserts that the applicant has no interest in seeking annulment of the contested decision. In its observations following referral, it claims, in the first place, that, in the contested decision, it did not find any new infringement attributable to the applicant and did not amend the amount of the fine imposed on it in the 2009 decision, which became final with regard to the applicant following the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507). That is borne out by paragraphs 72 and 110 of the judgment on appeal.

56 In the second place, paragraphs 79 and 80 of the judgment on appeal confirm, in essence, that the fine imposed jointly and severally on ACW and CPA together with the applicant cannot be amended, since it was established by the 2010 decision, which has also become final so far as concerns ACW and CPA. This means that the applicant cannot require ACW and CPA to shoulder any greater or different liability than that established by the 2010 decision in order to cover the amounts still due under the 2009 decision.

57 In the third place, by ruling, in paragraph 72 of the judgment on appeal, that ‘since joint and several liability [was] merely a manifestation of an ipso jure effect of the concept of an undertaking and since, in the present case, there was one single undertaking, the Commission was entitled to determine, initially in points 31 and 32 of the second paragraph of Article 2 of the 2009 decision, and then in points 31(a), 31(b) and 32 of the second paragraph of Article 2 of the 2009 decision, as amended by the [contested decision], the maximum amounts of the fine which [the applicant], ACW and CPA could be held jointly and severally liable for payment of a single fine as entities forming part of one and the same undertaking to which the infringement at issue [was] imputable’, the Court of Justice rejected the possibility that the allocation of the amount of the fines could be altered and, consequently, also, the possibility that the action may lead to a more favourable allocation for the applicant of the fines provided for in those provisions.

58 In the fourth place, by deciding in paragraph 111 of the judgment on appeal that ‘the General Court [had] erred in law in holding, in paragraph 126 of the judgment [at first instance], that the time limit for payment of the fines could be determined only from the date of receipt of notification of the [contested decision]’, the Court of Justice found that it was incorrect to annul Article 2 of the contested decision, relating to the determination of the starting point of default interest.

59 In the Commission’s view, the General Court therefore followed the wrong line of reasoning when it rejected the Commission’s arguments concerning the admissibility of the action.

60 The applicant, for its part, argues, in the proceedings referred back to the General Court, that the Court of Justice did not question that the contested decision had modified the 2009 decision substantially to its detriment. It therefore has an interest in the contested decision being annulled.

61 The Commission, it submits, is mistaken when it takes the view that the applicant cannot effectively challenge the contested decision merely because the 2010 decision became final in relation to its co-debtors. That interpretation would go against the principle of effective legal protection as it would deprive the applicant of the possibility to challenge a decision which is addressed to it. The applicant recalls that the General Court annulled the 2010 decision in so far as it applies to the applicant, and therefore any binding effects of the 2010 decision for ACW, CPA and the Commission would not go to the detriment of the applicant.

62 The Commission is also wrong to claim that the Court of Justice confirmed that the applicant could not benefit from the annulment of the contested decision. The reasoning of the Court of Justice is confined to the assessment of the grounds of appeal and does not concern the question of whether the contested decision must be annulled on other grounds, nor does it indicate which consequences that would have for joint and several liability.

63 Furthermore, the applicant claims that, in so far as, first, the General Court held in its judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), that the application for annulment of the 2010 decision was admissible and, second, that the operative parts of the contested decision and of the 2010 decision are identical, the present action must also be held to be admissible.

64 Finally, if it actually followed from the judgment on appeal that the application for annulment was inadmissible, the Court of Justice could have made that finding without assessing the merits of the pleas.

65 Furthermore, the applicant indicated its intention to bring an action for recovery against its co-debtors before the national courts, bearing in mind that annulment of the contested decision could increase the amount it would be able to recover.

66 In that regard, in accordance with settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. The proof of such an interest, which is evaluated at the date on which the action is brought and which is an essential and fundamental prerequisite for any legal proceedings, must be adduced by the applicant (see judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑236/17 P, EU:C:2019:258, paragraph 91 and the case-law cited; order of 25 March 2019, Solwindet las Lomas v Commission, T‑190/18, not published, EU:T:2019:205, paragraphs 28 to 30).

67 In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act (see judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraphs 27 and 28 and the case-law cited).

68 An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation. That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and must continue until the final decision, failing which there will be no need to adjudicate (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 56 and 57 and the case-law cited; order of 25 March 2019, Solwindet las Lomas v Commission, T‑190/18, not published, EU:T:2019:205, paragraph 29).

69 An interest in bringing proceedings could arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU judicature is capable of benefiting the applicant (see judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 44 and the case-law cited). It is not for the EU judicature, for the purposes of determining an interest in bringing proceedings before it, to assess the likelihood that an action brought before national courts under national law is well founded and, therefore, to substitute itself for those courts in making such an assessment. It is, by contrast, necessary, but sufficient, that, by its outcome, the action for annulment brought before the EU judicature would be capable of benefiting the party which brought it (see judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 56 and the case-law cited).

70 In the present case, as is apparent from paragraphs 5 to 10 above and paragraph 72 of the judgment on appeal, the Commission, in points 31 and 32 of the second paragraph of Article 2 of the 2009 decision, determined the maximum amounts of the fine for which the applicant, ACW and CPA could be held jointly and severally liable for payment of a single fine as entities forming part of one and the same undertaking to which the infringement at issue was imputable. It also fixed the date by which that fine was payable and the rate of default interest.

71 The General Court dismissed the applicant’s action against that decision in its judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507).

72 It is apparent from paragraphs 14 to 19 above that, by the 2010 decision, the Commission intended to correct an error of calculation relating to the application of the 10% ceiling to ACW, a correction which it was required to make under Article 23(2) of Regulation No 1/2003. After redefining the maximum amounts of the fine for which the applicant, ACW and CPA could be held jointly and severally liable – or even solely liable – it also postponed the date by which the fine was payable to 10 May 2010. However, the basis for determining the default interest rate was not changed. Pursuant to that decision, the applicant was required to pay to the Commission exactly the same amounts as those which it had originally been ordered to pay by the 2009 decision.

73 ACW and CPA did not file an appeal against the 2010 decision. The applicant, for its part, challenged it in the case which gave rise to the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), and its action was upheld by the General Court on account of the infringement of its rights of defence. Consequently, the 2010 decision was annulled in so far as it concerned the applicant.

74 The effect of that annulment was to reactivate the initial wording of Article 2 of the 2009 decision (judgment on appeal, paragraph 106). That article is, moreover, the legal basis for the obligation on the applicant, ACW and CPA to pay the fine (judgment on appeal, paragraph 110).

75 Following the annulment of the 2010 decision, in so far as it concerned the applicant, the Commission adopted the contested decision, Article 1 of which amended, in the same way as the 2010 decision, points 31 and 32 of the second paragraph of Article 2 of the 2009 decision. Article 2 of the contested decision itself set the date by which the fine was payable at 10 May 2010. Furthermore, the Commission explained in the last sentence of recital 23 of the contested decision that ‘the interest rate to be applied in the event of late payment [was] specified in the last paragraph of Article 2 of the 2009 Decision’ (see paragraph 10 above).

76 On 22 July 2016, the applicant provisionally paid the amount of the fine outstanding after the amounts paid by ACW and CPA, including interest.

77 It is against that background that the General Court must assess whether the applicant has an interest in the annulment of the contested decision.

78 In the first place, the applicant seeks, by its application for annulment, a change in the breakdown of joint and several liability between itself, ACW and CPA. In that regard, it is settled case-law that a decision which has not been challenged by the addressee within the time limit laid down by Article 263 TFEU becomes definitive as against that person (judgments of 17 November 1965, Collotti v Court of Justice, 20/65, EU:C:1965:115, p. 851, and of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 57).

79 Although drafted and published in the form of a single decision, the 2009 decision, as amended by the 2010 decision, must be analysed as a series of individual decisions finding, in respect of each of the addressee undertakings, the infringements found against it and imposing a fine (see, to that effect, judgment of 6 May 2009, Wieland-Werke v Commission, T‑116/04, EU:T:2009:140, paragraph 79 and the case-law cited). Such a decision can be annulled only as regards the addressees who have been successful in their actions before the EU judicature and continues to be valid and binding on the addressees who have not brought an action for annulment. Although the authority erga omnes exerted by an annulling judgment delivered by the EU judicature attaches to both the operative part and the ratio decidendi, it cannot entail annulment of a measure alleged to be vitiated by the same illegality, but which has not been challenged before the EU judicature (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54).

80 Neither ACW nor CPA brought an action challenging the 2010 decision and the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), annulled that decision only in so far as it concerned the applicant.

81 It follows that the 2009 decision, as amended by the 2010 decision, undoubtedly became final with regard to ACW and CPA, inasmuch as those companies can no longer challenge it.

82 However, in contrast to what the Commission contends, although they were not parties to the action brought by the applicant against the 2010 decision, ACW and CPA have had, as has the applicant, their respective legal situations affected by the annulment of the 2010 decision. That analysis is borne out by that of Advocate General Pitruzzella in point 39 of his Opinion in Commission v GEA Group (C‑823/18 P, EU:C:2020:426; ‘the Opinion in the case which gave rise to the judgment on appeal’) as regards the consequences for the co-debtors of the 2010 decision, in which he notes that, whatever method the Commission uses, the recalculation of the joint and several liability between the applicant, CPA and ACW following the reduction of the fine imposed on ACW would in any event have led, for both the applicant and CPA, to a more unfavourable situation than that resulting from the 2009 decision.

83 Annulment judgments have, in EU law, the force of res judicata with absolute effect (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54). In accordance with that principle and following the annulment, by the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), of the 2010 decision in respect of the applicant, that decision cannot be challenged in any way against it.

84 Moreover, the legal situation of ACW and CPA with regard to the provisions of the 2009 decision, as amended by the 2010 decision, is connected to that of the applicant, in so far as those provisions are intended to determine the maximum amount of the fine that the Commission may impose on them in respect of the infringements for which they are jointly and severally liable, that is, the breakdown of joint and several liability as between those companies from an external perspective with regard to that fine.

85 It is apparent from the judgment of 3 March 1971, Acciaierie e Ferriere Riva v Commission (2/70, EU:C:1971:19, paragraph 7), that, in the context of common financial arrangements such as the equalisation of ferrous scrap, which are based on a strict interdependence of the payments made by each of the participants, above all equality of treatment between contributors must be ensured by eliminating all possibility of discrimination between them. Therefore, the Commission had the right and the duty, in the very interest of the contributors to that scheme, to ensure that the latter always operated on just principles, which were both legally and factually sound. The Court of Justice concluded from this that the onus was therefore on the Commission to rectify all legal or factual errors and all assessments which experience showed to be inaccurate or incomplete, set out in a first decision, despite the passing of the time limit for bringing proceedings against it.

86 Accordingly, by the 2010 decision, the Commission altered the breakdown of joint and several liability with respect to the 2009 decision without any legal proceedings being brought to that effect by ACW.

87 In view of the interdependence between the situations of companies that are jointly and severally liable for the payment of a fine, as in the present case, annulment of the contested decision may result in the fine in question being allocated more favourably to the applicant.

88 Accordingly, in a particular situation such as the one at hand, the Commission cannot base an argument on the definitive nature of the 2010 decision as regards those held jointly and severally liable alongside the applicant in order to deny the applicant the possibility of submitting the merits of the contested decision for review by the EU judicature.

89 In the second place, the applicant claims that, in the event of annulment of the contested decision, the Commission should have reduced the amount of the fine imposed on it in the 2009 decision.

90 First, the sum that the applicant was ordered to pay in that decision is based on factors relating to the duration and gravity of the infringement. As is apparent from paragraphs 75 to 77 and 81 of the judgment on appeal, the application of the 10% ceiling was specific to ACW, since ACW was, at the time when the 2009 decision was adopted, no longer a subsidiary of the applicant. Moreover, the applicant has not alleged that the Commission’s error, which led to the amendment of the 2009 decision, resulted in the fine imposed on the applicant exceeding that ceiling. Secondly, the applicant’s action challenging the 2009 decision was dismissed by the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), which was not then subject to an appeal. Thirdly, it is true that, in the judgment of 11 July 2014, Sasol and Others v Commission (T‑541/08, EU:T:2014:628, paragraph 197), the General Court held that its finding of unequal treatment gave grounds for alteration of the contested decision. However, the amount of the fine imposed on the applicant in the present case does not derive from the contested decision but from the 2009 decision.

91 That said, the fact remains that, as the applicant has argued, it could not challenge, in its action against the 2009 decision, the correction made by the Commission concerning the application of the 10% ceiling in favour of ACW, since that correction was made only in the 2010 decision. Moreover, that decision was annulled in respect of the applicant. Therefore, as is also apparent from the findings in, inter alia, paragraphs 83 and 86 (not published) of the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), any error by which the Commission fails to extend to the applicant a reduction in the maximum amount of the fine which the Commission may impose on ACW may justify a reduction in the maximum amount of the fine which the Commission may impose on the applicant. In such circumstances, it is for the Commission to rectify all legal or factual errors affecting its assessment (see, by analogy, judgment of 3 March 1971, Acciaierie e Ferriere Riva v Commission, 2/70, EU:C:1971:19, paragraph 7).

92 In contrast to the present case, in the case which gave rise to the judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others (C‑310/97 P, EU:C:1999:407), some of the parties to whom the decision imposing penalties was addressed had brought independent actions against it. After that decision had been annulled in respect of the parties that had challenged it before the EU judicature within the prescribed period, the other addressees requested that the decision be reviewed in the light of the judgment annulling that decision. That case-law is therefore not relevant in the present case.

93 In the third place, in the applicant’s view, the annulment of the contested decision would have the effect, as was the case following the annulment of the 2010 decision, of reviving the original wording of Article 2 of the 2009 decision. The applicant could rely on it before the national courts in an action for recovery against its co-debtors. It indicated that it intended to bring such an action, as, moreover, the Commission had proposed. In that regard, it is necessary and sufficient that, by its outcome, the action for annulment brought before the EU judicature would be capable of benefiting the party which brought it (see judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 56 and the case-law cited). By contrast, it is not for the EU judicature, for the purposes of determining an interest in bringing proceedings before it, to assess the likelihood that an action brought before national courts under national law is well founded and, therefore, to substitute itself for those courts in making such an assessment.

94 It follows from paragraphs 78 to 93 above that the Commission’s plea of inadmissibility must be rejected.

95 In order to draw all the consequences of the judgment on appeal for the action, it is necessary first of all to examine the pleas in law that were subject to review by the Court of Justice.

(a) The fourth plea, alleging infringement of the principle of equal treatment

96 In the fourth plea, the applicant complains that the Commission infringed the principle of equal treatment with regard to the applicant. It divides its plea into two parts, alleging, first, different treatment of its situation and that of ACW and, second, different treatment of its situation and that of CPA.

97 In so far as the Court of Justice ruled on the General Court’s assessment of the second part of that plea, it is appropriate to examine it first.

(1) Second part of the fourth plea, alleging different treatment of the applicant’s situation and that of CPA as regards joint and several liability

98 In the initial proceedings, the applicant claimed that it had lost all joint and several co-debtors, in so far as the Commission had reduced ACW’s part of the fine for which the applicant was jointly and severally liable with ACW by 100%, whereas it reduced the part of ACW’s fine for which the applicant was jointly and severally liable with ACW and CPA by only 43%.

99 That choice is advantageous for CPA, since it does not have to bear a higher share of the fine, unlike the applicant, which has been found liable for a higher share of the fine both as joint and several co-debtor and as sole debtor.

100 The applicant claims that the Commission should have applied the 10% ceiling proportionally to both fines, that is to say, to the fine which was imposed jointly and severally on the applicant, ACW and CPA, and to that which was imposed jointly and severally on the applicant and ACW.

101 Although that allocation was not possible, since the 2010 decision had become final with regard to ACW and CPA, the fact remains that the Commission should have reduced the amount of the fine imposed on the applicant.

102 In that regard, the applicant states that that allocation does not affect the joint and several liability as between co-debtors, but rather the liability of those co-debtors vis-à-vis the Commission.

103 In its observations following referral, the applicant claims that, in exercising its powers to define how joint and several liability should be imposed from an external perspective, the Commission in fact divided the joint and several liability, which is prohibited according to paragraph 82 of the judgment on appeal. The Commission created two, and later three, separate groups of jointly and severally liable legal persons for one and the same infringement by one and the same ‘undertaking’ and those groups are not interlinked by any joint and several liability.

104 The Commission also imposed two separate fines on them, reflecting two different infringement periods.

105 If there was indeed a single infringement by one single undertaking, as is apparent from paragraph 73 of the judgment on appeal, then there should be only one relationship of joint and several liability between the applicant, ACW and CPA, not two or three. Accordingly, respecting the maximum amounts, the coherent Commission decision should have been that the applicant, ACW and CPA were jointly and severally liable: the applicant for EUR 3 346 100, CPA for EUR 1 913 871 thereof and ACW for EUR 1 086 128 thereof. That would have been one group of jointly and severally liable debtors answering for one single infringement committed as part of one single undertaking at the time of the infringement. As a result, ACW and CPA would have been liable for a total amount of EUR 2 999 999, leaving the applicant solely liable only for EUR 346 101, which is approximately one third of the sole liability determined by the contested decision. That approach would also have made it possible to adapt the maximum amount owed by ACW without giving rise to disagreement, that is to say, the shortfall would automatically have been proportionately allocated between CPA and the applicant.

106 The applicant therefore upholds the position that the Commission was wrong to divide the fine into, ultimately, three separate groups. That division was detrimental to the applicant because it reduced its ability to take action against a co-debtor, given that a large portion of the fine was even imposed on the applicant alone. The applicant was therefore placed at a disadvantage by comparison with its co-debtors. The Court of Justice has not addressed that issue, which will have to be decided by the General Court in the present case.

108 As a preliminary point, it should be noted that the applicant’s complaint, set out in its observations submitted pursuant to Article 217(1) of the Rules of Procedure – that, in essence, the Commission erred in dividing the fine in question into two, then three groups initially defined in points 31 and 32 of the second paragraph of Article 2 of the 2009 decision and, subsequently, in points 31(a), 31(b) and 32 of the second paragraph of Article 2 of the 2009 decision, as amended by the contested decision, rather than by establishing a single group of jointly and severally liable debtors within the individual maximum amounts – is not apparent from the application which it had lodged in the initial proceedings.

109 When asked by the General Court whether that argument constitutes a new plea in law within the meaning of Article 84(1) of the Rules of Procedure and, if so, whether that plea must be regarded as admissible, the applicant claims that it merely submitted observations on the relevance of the judgment on appeal to the pleas set out in the application. It argues that the purpose of Article 217(1) of the Rules of Procedure is to allow the application to be considered in the light of the judgment on appeal, and therefore the parties are entitled to draw conclusions as to how the findings of that judgment affect the pleas if they differ from the applicant’s initial interpretation of the contested decision, which is the case here. Accordingly, the applicant explained the import of the Court of Justice’s finding that there were not two relationships of joint and several liability on the joint and several liability set in the contested decision, namely that the Commission should have imposed joint and several liability on a group of debtors, with each having its own individual ceiling. It follows that that line of argument does not constitute a new plea in law, but an observation which is relevant to the initial pleas, more specifically the first and fourth pleas.

110 The Commission, for its part, takes the view, in essence, that the line of argument in question constitutes a new and inadmissible plea.

111 In that regard, it has been held that, according to Article 84(1) of the Rules of Procedure, applicable by virtue of Article 218 of those rules, where, as in the present case, the General Court is seised of a case by a judgment of the Court of Justice referring it back to the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. It follows that, following the judgment on appeal of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the proceedings which gave rise to the judgment of the General Court set aside by the Court of Justice. That rule applies, a fortiori, to new findings seeking to change the subject matter of the proceedings (judgment of 14 September 2011, Marcuccio v Commission, T‑236/02, EU:T:2011:465, paragraph 88). In accordance with Article 217(1) of the Rules of Procedure, the parties to the proceedings before the General Court may lodge their written observations on the inferences to be drawn from the decision of the Court of Justice for the outcome of the proceedings. In accordance with Article 76(d) of the Rules of Procedure, the subject matter of the proceedings is defined by the application. As is clear from the case-law cited above, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure, and therefore, following the referral judgment of the Court of Justice, the parties are not entitled, in principle, to rely on pleas which were not raised in the proceedings which gave rise to the judgment of the General Court set aside by the Court of Justice. It follows that, although the parties are entitled to draw inferences from the judgment on appeal for the dispute, they must not exceed the scope of that dispute when doing so. In particular, the applicant cannot raise, as a consequence of the judgment on appeal, new pleas in law challenging the legality of the contested act.

112 By stating in its response to the measure of organisation of procedure that, on the one hand, the parties may draw inferences as to how the findings of the judgment on appeal affect the grounds if those findings differ from the initial interpretation of the decision contested by the applicant and, on the other hand, in the present case, the inferences in that judgment differ from the interpretation of the contested decision put forward by the applicant in the application, the applicant admits, in fact, that it specifically intends to put forward a new plea in law challenging the legality of the contested decision as a consequence of the judgment on appeal.

113 It is therefore necessary to ascertain whether that new plea in law is admissible in the light of the criteria established by the case-law.

114 First, the applicant has not claimed that the plea in question was based on matters of law or of fact that came to light in the course of the procedure. In any event, the allocation of the amount of the fine imposed on the group in respect of which the applicant was the ultimate parent company is already present in the 2009 decision, as the applicant also indicates. Secondly, and as the Commission maintains, although the applicant bases its arguments in the application on the existence of groups formed for the purpose of allocating the fine imposed, the argument which it substantiated in its observations following referral challenges the legality of the formation of those groups. Since that line of argument is completely different, or even based on an opposite premiss, it cannot be regarded as amplifying the second part of the fourth plea, or even as having a close connection with it. If an applicant wishes to challenge an essential element of a decision – such as, in the present case, the division of the fine in question into two, then three groups – that challenge must be specifically stated before the General Court at the stage of the application.

116 In any event, the unfounded nature of that line of argument, like that of the second part of the fourth plea as a whole, stems directly from the judgment on appeal, as the Commission maintains.

117 In that regard, it follows from paragraphs 59 to 67 of the judgment on appeal that where the Commission has the possibility, under Article 23(2) of Regulation No 1/2003, of holding jointly and severally liable for payment of a fine a number of legal persons forming part of one and the same undertaking that is responsible for the infringement, the Commission’s determination of the amount of that fine – in so far as it is based, in any particular case, on the concept of an undertaking, which is a concept of EU law – is subject to certain limitations, which require due account to be taken of the characteristics of the undertaking concerned, as constituted during the period in which the infringement was committed. In so far as changes to the composition of the undertaking concerned do not call into question the fact that there is a single undertaking to which an infringement is imputable, they do not affect the Commission’s power to impose a fine jointly and severally on several legal persons belonging to a single undertaking.

118 In the present case, it is apparent from paragraphs 68 to 70 of the judgment on appeal that the applicant, ACW and CPA formed one and the same undertaking which, in its successive configurations, committed the infringement at issue.

119 Contrary to the applicant’s claims (see paragraphs 105 and 106 above), the Court of Justice held unequivocally in paragraphs 72 and 73 of the judgment on appeal that, in so far as joint and several liability was merely a manifestation of an ipso jure effect of the concept of an undertaking and since, in the present case, there was one single undertaking, the Commission was entitled to determine – initially in points 31 and 32 of the second paragraph of Article 2 of the 2009 decision, and then in points 31(a), 31(b) and 32 of the second paragraph of Article 2 of the 2009 decision, as amended by the contested decision – the maximum amounts of the fine which the applicant, ACW and CPA could be held jointly and severally liable for payment of a single fine as entities forming part of one and the same undertaking to which the infringement at issue was imputable. The determination of such maximum amounts does not reflect the specific periods during which the entities forming the single undertaking participated in the infringement at issue.

120 As the Advocate General explained in points 48 to 50 and 52 of the Opinion in the case which gave rise to the judgment on appeal, the distinctions made by the Commission in the abovementioned points of the 2009 decision in its original version and in the version resulting from the contested decision reflect the change of control among those entities forming the undertaking and the changes in the composition of the undertaking. By distinguishing the amounts to be imputed jointly and severally to the applicant, CPA and ACW, on the one hand, and to the applicant and ACW, on the other, the Commission also took into account the fact that, for a certain period, CPA had participated in the infringement as a subsidiary of a different parent company, with which it was ordered jointly and severally to pay a different fine set in point 33 of Article 2 of the 2009 decision.

121 The fact that, according to the contested decision, the applicant remains solely liable for the amount of EUR 1 432 229 is, as is apparent from paragraphs 74 to 80 of the judgment on appeal, purely an automatic result of the reduction applied to the fine imposed on ACW. That reduction could not be extended to the applicant, since those two companies no longer constituted an undertaking, for the purposes of competition law, on the date of adoption of the decision imposing the fine on it.

122 As the Court of Justice held in paragraph 81 of the judgment on appeal, the specific circumstances that the applicant and ACW no longer constituted an undertaking, for the purposes of competition law, on the date of adoption of the decision imposing the fine on it do not allow it to be concluded that the companies concerned were in comparable situations, and therefore the applicant cannot successfully argue that there has been an infringement of the principle of equal treatment to its detriment.

123 That is all the more so, given that the Court of Justice held in paragraphs 73, 82 and 83 of the judgment on appeal that, in the present case, there were not two relationships of joint and several liability relating to specific periods and that, therefore, it was not possible to allocate the joint and several liability. Accordingly, point 32 of the second paragraph of Article 2 of the 2009 decision, as amended by the contested decision, which imposes on the applicant an amount of the fine totalling EUR 1 432 229, is not addressed to CPA, not because that point concerns a specific infringement period during which it did not participate in the single infringement found by the Commission, which is not the case, but simply because the amount of the fine for which CPA is liable, due to its individual participation in that infringement by reason of its membership of the undertaking which did commit that infringement, is entirely covered by the amounts of the fine referred to in points 31(a) and 31(b) of the second paragraph of Article 2.

(2) First part of the fourth plea, alleging different treatment of the applicant’s situation and that of ACW with regard to liability for the infringement

125 The applicant claims that, under the 2009 decision, it is in the same situation as ACW with regard to the periods of infringement.

126 However, the applicant contends that, even if the 10% ceiling does not justify exemption from liability, its application in the present case, in favour of ACW, releases the latter from its liability for the period of infringement from 11 September 1991 to 29 September 1995.

127 Accordingly, the Commission should have extended to the applicant the benefit of a reduction in the amount of the fine following the application of the 10% ceiling to ACW’s turnover, that is to say, the fine imposed on the applicant under point 32 of the second paragraph of Article 2 of the contested decision should have been annulled in its entirety, if the applicant is not to be left solely liable for that period of infringement.

128 The applicant adds that the allocation of the fine, as imposed by the contested decision, may affect, to its detriment, the final allocation of the amount of the fine in proceedings before a national court, as it is not in a position to institute an action for recovery to claim the corresponding amount of the fine.

130 In that regard, it should be noted that the application of the 10% ceiling to ACW does not exempt it from liability for its participation in the infringement. That ceiling applies, in accordance with the second subparagraph of Article 23(2) of Regulation No 1/2003, only to the fine, and not to liability for the infringement.

131 Only the part of the fine that ACW was required to pay, inter alia, jointly and severally with the applicant, has been reduced.

132 The fine imposed on each company forming a single undertaking within the meaning of Article 101 TFEU does not reflect specific periods during which those companies forming a single undertaking participated in the infringement at issue, but only the maximum amount that may, where appropriate, be claimed from them by the Commission for the participation of the undertaking, within the meaning of Article 101 TFEU, in the infringement (see, to that effect, judgment on appeal, paragraphs 72 and 73).

133 In so far as the application of the 10% ceiling was specific to ACW and could not be extended to the applicant, for the reasons set out by the Court of Justice in paragraphs 75 to 81 of the judgment on appeal, no unequal treatment can be found between the applicant and ACW.

134 It follows that that part and the fourth plea in law in its entirety must be rejected.

(b) The fifth plea, alleging a misuse of powers and a failure to state reasons

135 By the fifth plea, the applicant claims, first, that the Commission acted ultra vires and, second, failed to state reasons for the contested decision.

(1) The first part of the fifth plea, alleging that the Commission acted ultra vires

136 The applicant claims that the Commission acted ultra vires by setting retroactively a deadline for payment at a date at which no valid legal basis for payment existed.

137 First of all, the applicant claims that the Commission’s claim arising from the 2009 decision was not due and certain, within the meaning of Article 81 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), since that decision was no longer ‘applicable’.

138 Next, even if the 2009 decision were applicable, the applicant takes the view that it could not serve as a valid legal basis for recovery of the fine, since the illegality of that decision, as amended by the 2010 decision, was certain, as is apparent from the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504). The same is true of the 2010 decision, which was annulled by the General Court in that same judgment.

139 It adds that the Commission cannot charge default interest, since the late payment was caused by shortcomings on the part of the Commission during the administrative procedure prior to the adoption of the 2010 decision.

140 Lastly, the applicant states that a deadline for payment at a date which is in the past cannot be met and that it is therefore impossible for it to implement the contested decision properly.

142 In that regard, it suffices to note that it is apparent from paragraphs 110 and 111 of the judgment on appeal, and from point 62 of the Opinion in the case which gave rise to the judgment on appeal, to which the Court of Justice referred, that the amendment made to points 31 and 32 of the second paragraph of Article 2 of the 2009 decision, first by the 2010 decision, which has since been annulled, and then by the contested decision, concerned only the amount of the fine imposed on ACW and the reapportionment of joint and several liability, but did not affect the imposition of the fine as such or the total amount of that fine. Therefore, Article 2 of the 2009 decision is the legal basis for the obligation to pay the fine which is incumbent on the applicant, ACW and CPA, and not Article 1 of the contested decision.

143 In those circumstances, it is necessary to reject the applicant’s argument that the date by which the fines were due, or the date from which default interest starts to run, could be determined only from the date of receipt of notification of the contested decision. Accordingly, the Commission did not act ultra vires by setting the due date before that date.

145 In the initial proceedings, the applicant claims that the contested decision is vitiated by a failure to state reasons on account of, first, a contradiction of that decision with previous Commission practice and, second, a lack of consistency.

146 First of all, the applicant claims that the contested decision contradicts the 2010 decision, in which the Commission held that the date on which payment of the fine was due was set for the date of the receipt of notification of that decision. If the Commission had done the same in the contested decision, interest would not have been payable until three months after notification of that decision. In the contested decision, however, it applied the due date laid down in the 2010 decision.

147 Next, it claims that the Commission failed to explain why the date by which payment of the fine was payable is the date set in the 2010 decision, even though that decision was annulled by the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

148 Finally, the determination of the due date is all the more incomprehensible and contradictory since the contested decision does not adapt the applicable interest rate to the due date. The Commission applied a rate of interest in force on the first day of the month in which the 2009 decision was adopted, whereas, under Article 83(2) of Delegated Regulation No 1268/2012, it should have applied the interest rate applicable on the date on which the fine was payable. As the deadline is set by Article 2 of the contested decision for 10 May 2010, it would have been consistent to amend the interest rate accordingly. However, the Commission did not change the last sentence of Article 2 of the 2009 decision, which determines that the interest has to be paid at the rate applied on the first day of the month of the invalidated 2009 decision.

149 In its observations following referral, the applicant claims that the judgment on appeal does not relate to the Commission’s obligation to state reasons, and therefore it has no bearing on the second part of the fifth plea. It maintains that the contested decision does not contain sufficient reasons as to how the date by which the fine was payable was determined and why the rate of default interest was not adjusted to that date.

151 In that regard, it is settled case‑law that 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 measures in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the EU judicature to exercise its power of review (see judgment of 22 April 2008, Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraph 56 and the case-law cited).

152 The question whether the statement of reasons meets the requirements of Article 296 TFEU must also 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 (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; of 22 June 2004, Portugal v Commission, C‑42/01, EU:C:2004:379, paragraph 66; and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79).

153 In addition, it should be noted that infringement of the duty to state reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the contested decision are inaccurate, the latter plea being a matter to be reviewed when the validity of that decision is examined (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 19 June 2009, Qualcomm v Commission, T‑48/04, EU:T:2009:212, paragraph 179). The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 181 and the case-law cited).

154 In the present case, it is apparent both from recital 23 of the contested decision and from point 14 of the letter of 5 February 2016 that the Commission took the view that the 2009 decision was the valid legal basis for the fine imposed on the applicant and that, for that reason, it would in principle have been entitled to set in the contested decision the same due date as in the 2009 decision. That analysis was, moreover, endorsed by the Advocate General in point 63 of his Opinion in the case which gave rise to the judgment on appeal when he stated that, ‘in the letter of notification of the 2010 decision and then in the operative part of the contested decision, the Commission [had] decided – although it was not required to do so – to postpone that date, as set out in the final paragraph of Article 2 of the 2009 decision, until 10 May 2010’.

155 Nevertheless, given that the 2010 decision – which has since been annulled as regards the applicant – postponed the date by which the fine imposed not only on the applicant but also on ACW and CPA was payable, the Commission intended, in the contested decision, as the Advocate General states in paragraph 22 of his Opinion in the case which gave rise to the judgment on appeal, to align that date with the date resulting from the 2010 decision in the interests of legal certainty and sound administration and in the light of the legitimate expectation which the applicant may have had that the due date should not be fixed at an earlier date. Furthermore, it explained why it charged default interest only from 15 July 2015, the date on which the bank guarantees became unusable as a result of the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504). The Commission therefore did not breach its duty to state reasons in that regard.

156 Contrary to what the applicant claims, it is equally clear that the rate applicable for default interest was set in line with the 2009 and 2010 decisions. That is because the Commission has consistently considered the 2009 decision to be the valid legal basis for the imposition of the fine, which permitted it to apply the interest rate set out in that decision even in amending decisions. As in the 2009 decision, the 2010 decision, the letter of 5 February 2016 and the contested decision, the Commission set the rate of default interest on the basis of the rate applied by the European Central Bank (ECB) to its main refinancing operations on the first day of the month in which the 2009 decision was adopted, which constituted the legal basis for the applicant’s obligation to pay the fine.

157 Although the applicant took the view that the fixing of that rate of default interest was unlawful in the light of Article 83(2) of Delegated Regulation No 1268/2012, that question fell to be considered in the examination of whether that decision was justified. However, the applicant has not raised any plea in that regard.

159 According to the applicant, the Commission infringed Article 23 of Regulation No 1/2003, read in conjunction with Article 25 thereof, in that it adopted the contested decision after the limitation period had elapsed.

160 It claims, in the first place, that the contested decision is a ‘new’ decision providing a new legal basis for the fine imposed on it, since the 2010 decision, which was annulled by the General Court in so far as it concerns the applicant, ‘replaced and annulled’ the 2009 decision. The 2009 decision cannot therefore be enforceable, either as regards ACW and CPA or as regards the applicant.

161 It follows that the fine imposed under the contested decision is itself also new and the Commission therefore should have complied with the limitation period provided for in Article 25 of Regulation No 1/2003. The limit laid down in that provision applies to the powers conferred on the Commission under Articles 23 and 24 of Regulation No 1/2003. Since the contested decision was adopted on the basis of Article 23(2) and (3) of Regulation No 1/2003, it is therefore subject to the rules on limitation periods, even though it is an amending decision. Thus, according to the applicant, the contested decision should have been adopted, at the latest, on 3 November 2015.

162 In the second place, the applicant adds, in essence, that the 2009 decision cannot be ‘revived’ unless it contradicts the 2010 decision, which has become final so far as concerns ACW and CPA, with the result that the 2009 decision is not a valid legal basis for the imposition of a fine.

163 First, the 2009 and 2010 decisions differ in that the 2009 decision does not limit the amount of the fine for which ACW is jointly and severally liable to 10% of its total turnover. Secondly, under the 2010 decision, ACW is jointly and severally liable for a lower amount than that imposed on the applicant. Thirdly, the 2010 decision alters the periods of the infringement for which ACW is liable.

164 That difference as to the period of infringement for which ACW was held jointly and severally liable supports, on the one hand, the argument that the 2010 decision ‘repealed and replaced’ the 2009 decision and, on the other, the argument that the 2009 decision cannot be ‘revived’ so far as concerns the applicant whilst the 2010 decision does apply to ACW and CPA.

165 Moreover, the applicant claims that the operative part of the 2009 decision cannot be applicable to it, as it is silent on the point of its sole and joint and several liability, contrary to the principle that the penalty must be specific to the offender and the offence, and to the principle of legal certainty.

166 In the third place, even if the fine imposed on the applicant could be based on the 2009 decision, the applicant argues that the Commission was still required to abide by the limitation period of its powers to impose penalties in the adoption of the contested decision.

167 First, it submits, the Commission adopted the contested decision on the basis of Article 23(2) of Regulation No 1/2003, and did likewise for the 2010 decision. Secondly, the Commission’s determination of the scope of the applicant’s sole and joint and several liability is an indispensable part of any decision imposing a fine within the meaning of Article 23(2) of Regulation No 1/2003. That evidence must be included in a new decision. Thirdly, the Commission decided in the contested decision that the applicant could not benefit from a reduction in the amount of the fine corresponding to the application of the ceiling of 10% of ACW’s turnover. Fourthly, the Commission set a new date for the payment of the fine and for establishing default interest. Fifthly, that analysis was confirmed by the General Court in paragraphs 67 to 69 of the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), in that, in that judgment, it found the 2010 decision to be a decision imposing a fine. Therefore, the legal basis for determining the fine and the sole or joint and several liability is Article 23(2) and (3) of Regulation No 1/2003. Accordingly, far from being a ‘descriptive’ decision, the contested decision is bound by the limitation period. The limitation period expired before the contested decision was adopted.

168 It follows, in the applicant’s view, that, if the Commission had the power to re-determine the liability to the detriment of the addressee after the limitation period had elapsed, as it argued in that case, the limits to its powers provided for by Article 25 of Regulation No 1/2003 would be altered.

169 In the last place, the applicant claims that there can be no exception in the present case such as to limit the Commission’s obligation to adopt a decision imposing a fine within the time limit set out in Article 25 of Regulation No 1/2003, since the Commission alone is responsible for the excessively long duration of the administrative procedure following the General Court’s annulment of the 2010 decision in so far as it concerns the applicant. In particular, the present case should be distinguished from the case which gave rise to the judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission (T‑250/12, EU:T:2015:749), and on which the Commission relies in recital 22 of the contested decision.

170 The General Court’s conclusion as to the limitation period in its judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission (T‑250/12, EU:T:2015:749), cannot be transposed to the present case.

171 In its observations following referral, the applicant takes the view that the Court of Justice has not yet ruled on that plea and that the judgment on appeal has, in any event, no bearing on its merits.

172 It is true that the Court of Justice held in paragraph 110 et seq. of the judgment on appeal that the 2009 decision was the legal basis for the fine. It did not, however, state that that decision was a sufficient and lawful legal basis for claiming the fine. On the contrary, the Court of Justice acknowledged that the amendments made by the contested decision concerned ‘the amount of the fine imposed on ACW and the reapportionment of joint and several liability’. Furthermore, the Court of Justice found, in paragraph 74 of the judgment on appeal, that the fact that the applicant remains solely liable for a large portion of the fine was ‘purely an automatic result of the reduction applied to the fine imposed on ACW’.

173 The applicant takes the view that the Court of Justice did not therefore dispute that the contested decision had made substantial or substantive changes to the 2009 decision to its detriment. Therefore, it is a substantive decision which must necessarily be based on Article 23 of Regulation No 1/2003. If the contested decision did not contain a decision on the substance, it would not have been necessary to hear the applicant before adopting the decision, as the General Court found in its judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504). Accordingly, the contested decision is subject to the rules on limitation periods arising from Article 25 of that regulation.

174 Furthermore, the judgment on appeal does not question the fact that the Commission has set a new due date for the payment of the fines and, thereby, taken a decision on the substance, which should be founded on a legal basis. The Court of Justice merely held in paragraph 109 et seq. of the judgment on appeal that the Commission had the power to determine the due date after the 2009 decision was served.

176 In that regard, it should be borne in mind that, pursuant to Article 25(1)(b) of Regulation No 1/2003, read in conjunction with Article 23(2)(a) thereof, the power conferred on the Commission to impose fines on undertakings where, either intentionally or negligently, they infringe Article 101 TFEU, is subject to a limitation period of five years.

177 Under Article 25(2) of Regulation No 1/1003, time begins to run on the day on which the infringement is committed. That same provision states, however, that, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases.

178 Article 25(3) of Regulation No 1/2003 provides that any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement is to interrupt the limitation period.

179 However, it is apparent from Article 25(5) and (6) of Regulation No 1/2003 that the limitation period is to expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine, with that period being extended by the time during which limitation is suspended by reason of an action pending before the General Court or the Court of Justice.

180 In the light of those provisions, the General Court must determine, in assessing the first plea, whether the 2009 decision or the contested decision should be taken into account in assessing whether the Commission has complied with the time limits within which a fine may be imposed.

181 In the present case, as the Commission rightly points out, the judgment on appeal provides the necessary answers to that question.

182 It follows from paragraph 110 of the judgment on appeal, read in conjunction with point 62 of the Opinion in the case which gave rise to the judgment on appeal, to which it refers, that the amendment of points 31 and 32 of the second paragraph of Article 2 of the 2009 decision, first by the 2010 decision, which has since been annulled, and then by the contested decision, did not automatically amend the final paragraph of Article 2, according to which ‘the fines shall be paid in euro within three months of the date of the notification of this decision’. It concerned only the amount of the fine imposed on ACW and the reapportionment of joint and several liability, but did not affect the imposition of the fine as such or the total amount of that fine. Therefore, Article 2 of the 2009 decision is the legal basis for the obligation to pay the fine which is incumbent on the applicant, ACW and CPA, and not Article 1 of the contested decision.

183 In paragraph 111 of the judgment on appeal, the Court of Justice found that the General Court had erred in law in holding, in paragraph 126 of the original judgment, that the due date for payment of the fines could be determined only from the date of receipt of notification of the contested decision.

184 The Court of Justice, first, clarified that the legal basis for the obligation of the three companies forming the single undertaking, including ACW and CPA, in respect of which the 2010 decision had not been annulled, to pay the fine was the 2009 decision, which, as a valid legal basis, allowed the Commission to set the date on which the fines were payable at a date prior to the date of receipt of notification of the contested decision and, secondly, expressly excluded the contested decision as being that legal basis. Consequently, the applicant cannot rely on the date of adoption of the contested decision to claim that the Commission’s power to impose the fine on it is time-barred.

185 That analysis is confirmed by the Advocate General in point 21 of the Opinion in the case which gave rise to the judgment on appeal, which rejects the applicant’s argument that the Commission had no interest in bringing the appeal against the original judgment, in view of the alleged time-barring of its power to impose a fine on it at the time when the contested decision was adopted.

186 In the present case, by virtue of Article 25(5) of Regulation No 1/2003, the limitation period for the imposition of fines is to expire at the latest at the end of a period of 10 years from the day on which the infringement ceased, ‘without the Commission having imposed a fine’. Now, in the present case, it is self-evident that the applicant was penalised for the infringement committed on the ESBO/esters sector market by the 2009 decision, adopted within the 10-year period provided for in Article 25(5) of Regulation No 1/2003. The fact that the maximum amount of the penalty imposed was determined incorrectly for one of the entities forming the undertaking responsible for the infringement, by reason of the fact that the ceiling of 10% of turnover provided for in the second subparagraph of Article 23(2) of that regulation was exceeded and that the Commission therefore decided to amend the operative part of the 2009 decision in order to correct that error, has no effect on the time when the Commission’s power to impose penalties was exercised for the purposes of applying the limitation periods. Neither the 2010 decision nor the contested decision altered the Commission’s decision, contained in the 2009 decision and adopted in accordance with Article 23(2) of Regulation No 1/2003, to impose a fine on the undertaking composed of ACW, CPA and the applicant, nor did they alter the amount of the fine imposed on that undertaking, or the amount for which the applicant could be held liable, but merely reduced the amount for which ACW could be held liable, by redefining the relationships of sole and joint and several liability between the three entities in question. As is apparent from the judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission (T‑250/12, EU:T:2015:749, paragraphs 74 to 77), for the purposes of applying the rules on limitation periods, it is necessary to take account of the date on which the Commission decided to impose the fine for the infringement of competition law, and not the date on which the amending decision was adopted, namely, in the present case, the contested decision, by which the Commission sought to comply with the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), and which in no way called into question the decision taken in the 2009 decision to penalise the anticompetitive conduct of the undertaking of which the applicant was a part by imposing on it a fine under Article 23 of Regulation No 1/2003. Since the contested decision cannot therefore be regarded as a new decision to impose a fine, the applicant’s argument that the Commission’s power to impose a fine on it was time-barred at the time when the contested decision was adopted must be rejected.

187 Moreover, that view is also supported by Article 26(3) of Regulation No 1/2003 on the basis of which a decision varying the original amount of the fine interrupts the limitation period for the enforcement of penalties and is not, therefore, relevant for the purposes of the time-barring of the power to impose the fine.

188 In any event, according to settled case-law, first, the failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual, such as the fact that the Commission did not adopt the contested decision within the period set by the EU legislature, constitutes an infringement of essential procedural requirements (judgments of 23 February 1988, United Kingdom v Council, 68/86, EU:C:1988:85, paragraphs 48 and 49, and of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 103). Secondly, if the EU judicature finds, on examining the act in question, that it has not been properly adopted, it must draw the necessary conclusions from the infringement of an essential procedural requirement and, therefore, annul the act vitiated by that defect (see, to that effect, judgments of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraph 51; of 6 April 2000, Commission v Solvay, C‑287/95 P and C‑288/95 P, EU:C:2000:189, paragraph 55; and of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 103). Thirdly, infringement of essential procedural requirements within the meaning of Article 263 TFEU constitutes a ground said to be of public policy, which must be raised by the EU judicature of its own motion (see judgment of 13 December 2013, Hungary v Commission, T‑240/10, EU:T:2013:645, paragraph 70 and the case-law cited).

189 It follows that the fact that the Court of Justice did not raise of its own motion and penalise the alleged time-barring of the Commission’s power to impose a fine on the applicant supports the finding that, in adopting the contested decision, the Commission did not infringe the rules on limitation periods which were imposed on it.

190 Moreover, although the applicant argues essentially that if an amending decision such as the contested decision were not subject to compliance with rules on limitation periods then the Commission would no longer have any incentive to adopt a correct decision in due time, it should be noted that compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the EU judicature ensures (judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 35). That principle has been enshrined in Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), which states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies and agencies of the European Union.

191 The reasonableness of such a period must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 29).

192 Infringement of that principle, if established, would justify the annulment of the contested decision however only in so far as it also constitutes an infringement of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the EU judicature in the context of an action for damages (judgments of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 61, and of 20 April 1999, 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 122). In the present action, the applicant has not claimed, let alone proved, that its rights of defence were actually infringed.

(d) The second plea, alleging infringement of Article 266 TFEU and the rights of the defence

194 By its second plea, the applicant claims, in the first place, that the Commission infringed Article 266 TFEU and its rights of defence by adopting the contested decision without having heard its oral argument, even though it had submitted a request for an oral hearing.

195 It claims that, under Article 12(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123 , p. 18) and Article 6(1) of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29), a party to whom the Commission has addressed a statement of objections has a right to develop its arguments at an oral hearing, if it so requests in its written submissions.

196 The applicant submits that the letter of 5 February 2016, by which the Commission informed the applicant of its intention to adopt the contested decision, must be viewed as a statement of objections within the meaning of Article 27 of Regulation No 1/2003, as it contained new legal and factual material, in particular with regard to the application of the 10% ceiling to the applicant, on which it had not previously been heard. It follows from the case-law that a statement of objections indicates the main factual and legal criteria capable of giving rise to a fine in order to enable the undertaking to defend itself not only against a finding of infringement but also against the imposition of a fine. Its scope is thus not limited to the objections concerning the infringement itself. As it aims at allowing the party to defend itself, it has to contain all major factual and legal aspects. Accordingly, the Commission’s interpretation of the concept of a statement of objections is too restrictive.

197 The applicant adds that the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (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, EU:C:2002:582, paragraphs 98 and 99), although referred to by the Commission, does not support its position. While it confirms that a second oral hearing is not required where an amending decision relates to the same objections as those on which the undertakings have already submitted their observations, it does not state in which situation an amending decision can be considered as relating to the same or different objections within the meaning of Article 27 of Regulation No 1/2003. It should be established on a case-by-case basis whether a new decision, such as the contested decision, relates to the same objections. The letter of 5 February 2016 and the applicant’s reply of 24 March 2016 addressed new legal considerations such as, inter alia, the relevance of the 10% ceiling to the joint and several liability of the addressees of the contested decision, contradictions between the 2009 and 2010 decisions, and the limitation period applicable to the Commission’s powers to impose penalties. In addition, the case-law in question refers to a situation where the Commission adopts ‘a new identical decision’, which is obviously not the case here. The 2010 decision amended and explicitly replaced the 2009 decision in its main factual and legal aspects, notably by creating a new operative part that changed the liability and fines of all three addressees. Even if the operative part of the contested decision were identical to that of the 2010 decision, this would not be relevant, as the applicant was not heard before that decision was adopted either.

198 As the General Court stated in the case which gave rise to the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the application of the 10% limit to ACW and its impact for the sole and the joint and several liability of the three companies forming the single undertaking should have been the subject of discussion. The Commission itself admitted that is was not clear to it how, according to the applicant, the allocation should have been made. Considering the complexity of the issue and the various factors to be taken into account including, inter alia, the application of the principle ne bis in idem regarding ACW and CPA, the principles of equal treatment and determination of a fine specific to the offence and the offender, as well as the expiry of the limitation period, an oral hearing would have been the appropriate occasion to present the views and to discuss them. Contrary to what the Commission contends, the applicant did not intend to discuss issues relating to internal liability, but those relating to joint and several liability from an external perspective.

199 In the second place, the applicant submits that the Commission infringed Article 266 TFEU and its rights of defence by setting the date for the payment of the fine at 10 May 2010. Referring to the judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249, paragraphs 50 and 55), it claims that, by retaining that date, which corresponds to the date set by the 2010 decision, the Commission de facto maintains that decision, even though it was annulled by the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504). As the 2009 decision is not a valid legal basis for requesting payment of the fines, the applicant cannot be under the duty to pay late payment interests from an earlier date than the date of the contested decision. Maintaining the same due date as in the 2010 decision could therefore also result in unjust enrichment of the European Union.

200 Furthermore, the applicant claims that it is not relevant for the assessment of that plea whether the 2009 decision was valid and enforceable or not.

202 In that regard, it is appropriate to deal first with the second part of that plea, since its outcome follows directly from the judgment on appeal.

203 As has been held in paragraphs 142 and 143 above, Article 2 of the 2009 decision is the legal basis for the obligation to pay the fine which is incumbent on the applicant, ACW and CPA, and not Article 1 of the contested decision, and therefore the Commission did not act ultra vires by setting the due date before the date on which the contested decision was adopted.

204 For the same reasons, it cannot be maintained that the Commission infringed its obligation to comply with the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), by setting the date by which the applicant’s fine was payable at the same date as the date in the 2010 decision. That choice – which was made in order to align the dates on which the three companies forming the single undertaking responsible for the infringement in question were payable and not to re-impose on the applicant the due date resulting from the 2009 decision, since the 2010 decision had already postponed that date to 10 May 2010 – must be regarded as favourable to the applicant, in so far as the Commission could have maintained the date indicated in the 2009 decision, which is the legal basis for the fine.

206 As regards the first part of the second plea, it should be recalled that it is settled case-law that observance of the rights of the defence in a proceeding before the Commission, the aim of which is to impose a fine on an undertaking for infringement of the competition rules, requires the undertaking concerned to have been afforded the opportunity to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there has been an infringement. Those rights are referred to in Article 41(2)(a) and (b) of the Charter (see judgment of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 48 and the case-law cited). The question whether there has been infringement of the right to be heard must be determined having regard to, inter alia, the legal rules governing the matter in question (see judgments of 9 February 2017, M, C‑560/14, EU:C:2017:101, paragraph 33 and the case-law cited; judgment of 24 April 2017, HF v Parliament, T‑584/16, EU:T:2017:282, paragraph 154).

207 Article 27(1) of Regulation No 1/2003 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure, to enable the parties concerned to properly identify the conduct complained of by the Commission and the evidence which it has at its disposal (see, to that effect, judgment 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, EU:C:2004:6, paragraphs 66 and 67). Pursuant to Article 12 of Regulation No 773/2004, the Commission is to give the parties to whom it has addressed a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions. By denying a party the right to an oral hearing following a statement of objections, the Commission infringes essential procedural requirements, leading to the annulment of the contested decision (see, to that effect, judgment of 21 September 2017, Ferriera Valsabbia and Others v Commission, C‑86/15 P and C‑87/15 P, EU:C:2017:717, paragraphs 46 to 50).

208 In the context of the present case, it should be noted that, in its judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the General Court found that the Commission had infringed the applicant’s rights of defence not because it failed to organise an oral hearing, but because the Commission had neither heard the applicant nor granted it access to the file. By contrast, in the present case, the applicant was heard by the Commission, not at an oral hearing but in writing, after the Commission sent a letter dated 5 February 2016 informing it of the future adoption of the contested decision and inviting it to submit its observations.

209 Thus, the applicant complains only that the Commission did not allow it to present its observations orally, even though it had formally requested to do so.

210 In accordance with Article 12(1) of Regulation No 773/2004, ‘the Commission shall give the parties to whom it has addressed a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions’.

211 Pursuant to Article 6(1) of Decision 2011/695, ‘at the request of parties to whom the Commission has addressed a statement of objections or other involved parties, the hearing officer shall conduct an oral hearing so that such parties can further develop their written submissions’.

212 Both provisions make the right to be heard at a hearing before the Commission conditional on receipt of a ‘statement of objections’ from the Commission.

214 The applicant claims, in essence, that, having regard to the objective of the statement of objections of allowing the party concerned to defend itself, any document addressed to it by the Commission containing legal and factual elements which are decisive for the finding of an infringement or for the imposition – or amount – of a penalty in the form of a fine, and on which it had not previously been heard, must be covered by that concept. The Commission’s letter of 5 February 2016 contained new legal and factual elements which served as a basis for the contested decision.

215 According to the Commission, the concept of a statement of objections presupposes, in essence, that new objections have been raised against the person concerned. However, neither the letter of 5 February 2016 nor the contested decision contained any new objection in relation to those in respect of which the applicant had already been heard, including at an oral hearing, before the 2009 decision was adopted.

216 According to the case-law, the statement of objections is designed to ensure the exercise of the rights of the defence, individually, by each natural or legal person concerned by the administrative proceedings in relation to the competition rules (judgment of 14 September 2017, LG Electronics and Koninklijke Philips Electronics v Commission, C‑588/15 P and C‑622/15 P, EU:C:2017:679, paragraph 45). It constitutes the essential procedural safeguard in that respect (see judgment of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 95 and the case-law cited).

217 As regards the finding of an infringement, observance of the rights of the defence requires that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contains the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative proceedings brought against it (see judgments of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 141 and the case-law cited, and of 8 September 2010, Deltafina v Commission, T‑29/05, EU:T:2010:355, paragraph 114).

218 In relation to penalties, where the Commission in its statement of objections expressly indicates that it will examine whether it should impose fines on the undertakings concerned and indicates the main legal and factual criteria capable of attracting a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard (see judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 142 and the case-law cited).

219 In so doing, the Commission provides them with the necessary elements to defend themselves not only against the finding of an infringement but also against being fined for that infringement (see judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 142 and the case-law cited).

220 Nevertheless, it is apparent from the case‑law that to oblige the Commission to give to undertakings under investigation specific indications of the level of the contemplated fines at the stage of the statement of objections would in effect require it inappropriately to anticipate its final decision (see judgment of 8 September 2010, Deltafina v Commission, T‑29/05, EU:T:2010:355, paragraph 325 and the case-law cited).

221 It is also apparent from the case-law that the Commission is also not required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level (judgment of 6 July 2017, Toshiba Corporation v Commission, C‑180/16 P, EU:C:2017:520, paragraph 21).

222 Similarly, details of the new elements of the method for determining the amount of an undertaking’s fine following partial annulment of the first decision imposing the fine do not have to be included in a new statement of objections (judgment of 6 July 2017, Toshiba Corporation v Commission, C‑180/16 P, EU:C:2017:520, paragraph 34).

223 In the present case, by letter of 5 February 2016, in order to comply with the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), the Commission informed the applicant of the future adoption of the contested decision, set out its reasons for that decision and invited it to submit its observations. That letter does not set out any new objection or indicate any principal element of fact and law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently. First, after it had made reference to the calculation error it had made with regard to ACW in the 2009 decision, the Commission explained how it intended to apply the 10% ceiling to that company. In particular, it stated, referring to the case-law, that the application of that ceiling was specific to ACW and could not be extended to its parent company, namely the applicant. It pointed out that the amendments in the contested decision related to joint and several liability from an external perspective, indicated the maximum amounts of the fine for which the three entities could be held jointly and severally liable and gave reasons why the applicant remained solely liable for the amount set out in point 32 of the second paragraph of Article 2 of the 2009 decision, as amended by the contested decision. Secondly, it justified the date by which the fine was payable, the starting point for default interest and the rate thereof. Furthermore, as the Court of Justice stated, the application of the 10% ceiling to ACW had what the Court described as an automatic result on the applicant.

224 Thus, in the light of the case-law cited in paragraphs 217 to 222 above, such elements go beyond what must appear in a statement of objections. Accordingly, the letter of 5 February 2016 cannot be classified as a statement of objections, and therefore the applicant was not entitled to obtain an oral hearing on that basis.

225 In any event, the applicant’s rights of defence have been observed in so far as, by the precise information it provided, that letter indeed gave the applicant the opportunity to express its views effectively regarding the announced amendment of the 2009 decision (see, to that effect, judgment of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraphs 41 to 43).

226 Accordingly, the first part of the second plea must be rejected and the plea must therefore be rejected in its entirety.

(e) The third plea, alleging infringement of Article 23(2) and (3) of Regulation No 1/2003

227 By its third plea, the applicant criticises the Commission, in the first place, for failing to give it the benefit of a reduction in the amount of the fine corresponding to the application of the ceiling of 10% of ACW’s turnover, contrary to Article 23(2) and (3) of Regulation No 1/2003.

228 The applicant claims that it should have been given the benefit of such a reduction, since its liability is derived from that of ACW and since the reduction in the amount of the fine imposed on ACW has a direct link to its liability.

229 The applicant agrees with the Commission that it follows from the case-law that a different fine may be imposed on a parent company where that company no longer constitutes an undertaking with its subsidiary for the purposes of Article 101 TFEU on the date of adoption of a decision imposing a fine on them. In such a situation, elements specific to each of them may be taken into consideration. However, the Commission does not take the view that the reduction of the fine for ACW has a direct link to ACW’s liability. In the applicant’s submission, ACW is no longer held liable for the period of infringement set out in point 32 of the second paragraph of Article 2 of the 2009 decision, namely the period from 11 September 1991 to 29 September 1995.

230 It claims that the 10% ceiling cannot be considered, in the present case, to be a criterion specific to each company forming a single undertaking within the meaning of Article 101 TFEU, since it directly affects ACW’s liability and, indirectly, the applicant’s liability. Accordingly, a parent company, such as the applicant, cannot be held liable in a situation where its liability is purely derivative and its subsidiary is no longer held liable for a period of the infringement.

231 In the second place, the applicant claims that the contested decision infringes Article 23(2) and (3) of Regulation No 1/2003 as it modifies the applicant’s liability even though the gravity and the duration of the infringement have not changed. The contested decision does not impose a joint and several liability and a sole liability that is specific to the applicant. First, the applicant argues that the contested decision modified its liability by imposing a new sole liability. Whilst the 2009 decision imposed a fine on the applicant for which it was 100% jointly and severally liable with ACW and up to 60% with CPA, under the contested decision ACW and CPA will be jointly and severally liable for up to only 30% and 60% respectively of the fine imposed on the applicant.

232 The applicant argues that that modification of the liability to its detriment is not justified on any grounds specific to the infringement or its conduct. It claims in that regard that, according to the case-law, the Commission is under an obligation to adhere to the principle that the penalty must be specific to the offender and the offence, including when it determines how the joint and several liability is to be imposed from an external perspective.

233 Secondly, the sole purpose of the 10% ceiling is to prevent disproportionate fines, not to impose additional fines on certain companies, as results from the operative part of the contested decision.

234 The increase of the applicant’s sole liability as a result of the decrease of ACW’s liability is directly determined by the contested decision. The applicant states that, due to its sole liability for a portion of the fine, an internal allocation of that portion of the fine to ACW is no longer possible. The applicant takes the view that it should not be held solely liable for the fine for which it and ACW should normally be held jointly and severally liable, given that the duration and gravity of the infringement is the same as that established by the 2009 decision.

235 Thirdly, in a situation where several companies are jointly and severally liable for a fine, the application of the 10% ceiling to one of those co-debtors cannot be to the detriment of the other co-debtors. In order to avoid an unjustified and unintended disadvantage for the other debtors, their external liability has to be reduced by the amount which the debtor entitled to benefit from that ceiling would normally have had to bear in the absence of that reduction.

236 Fourthly, the application of the 10% ceiling in the present case cannot be justified by the objectives pursued by competition law, in particular deterrence and effectiveness. The applicant observes that, if the 10% ceiling had not been applied to ACW, it would still have been able to recover a higher amount of the fine from ACW, with the result that the deterrent effect of the fine would not have been greater.

237 In its observations following referral, the applicant claims that the judgment on appeal has no bearing on the third plea. While the Court of Justice found indeed, in paragraph 74 of the judgment on appeal, that the increased sole liability of the applicant for a large portion of the fine was ‘purely an automatic result of the reduction applied to the fine imposed on ACW’, it did not decide whether this is line with Article 23(2) and (3) of Regulation No 1/2003. It merely denied infringement of the principle of equal treatment.

238 In accordance with Article 23(3) of Regulation No 1/2003, joint and several liability, and not only the fine as such, must be determined in line with the principle that the fine is specific to the offender and the offence. Therefore, the Commission was required to determine joint and several liability in line with that principle.

239 In addition, it is apparent from the case-law that, in accordance with the general principle of proportionality, which is also applicable in the context of Article 23(3) of Regulation No 1/2003, the Commission was required to determine joint and several liability in a way that is proportionate to the infringement.

240 The reduction of the fine for ACW affects the joint and several liability from an external perspective, as the applicant is solely liable for a larger amount vis-à-vis the Commission. Accordingly, if the joint and several liability as set by the 2009 decision is in line with the principle of proportionality, the contested decision cannot, in the applicant’s view, also be appropriate, given that its liability for the infringement remains unchanged.

242 In that regard, while it is true that the Court of Justice held that the Commission had not infringed the principle of equal treatment in the contested decision, it is also apparent from the grounds of the judgment on appeal that the Court of Justice generally approved the manner in which the Commission had applied to ACW, as one of the three legal entities of the single undertaking which committed the infringement, the ceiling of 10% laid down in Article 23(2) of Regulation No 1/2003. That statement of reasons, which is, moreover, binding on the General Court in the referral procedure, therefore makes it possible to respond to the present plea.

243 It follows from paragraph 52 of the judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission (C‑231/11 P to C‑233/11 P, EU:C:2014:256), that, when determining how joint and several liability is to be imposed from an external perspective, the Commission is under an obligation, in particular, to adhere to the principle that the penalty must be specific to the offender and the offence, which requires, in accordance with Article 23(3) of Regulation No 1/2003, the amount of the fine imposed to be determined by reference to the gravity of the infringement for which the undertaking concerned is held individually responsible and to the duration of the infringement.

244 However, Article 23(2) of Regulation No 1/2003 provides that for each undertaking and association of undertakings participating in the infringement the fine is not to exceed 10% of its total turnover in the preceding business year.

245 In the present case, it is sufficient to note that it is apparent from paragraphs 55 to 58 and 62 to 68 of the judgment of 26 November 2013, Kendrion v Commission (C‑50/12 P, EU:C:2013:771), to which the Court of Justice also refers in paragraphs 75, 77 and 81 of the judgment on appeal, that where two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking for the purposes of Article 101 TFEU on the date of adoption of a decision imposing a fine on them, as is the case here, they are entitled to have the 10% ceiling applied individually.

246 Those particular circumstances led the Commission to calculate separately the ceiling on the basis of the turnover obtained in the business year preceding the adoption of the contested decision, with the result that, in that decision, the Commission held the applicant jointly and severally liable for payment of the total amount of the fine, which amounted to EUR 3 346 200, and ACW jointly and severally liable for payment of the sum of EUR 1 086 129 (judgment on appeal, paragraphs 77 and 79).

247 As regards the fact that, by virtue of the contested decision, the applicant alone remains liable for the amount of EUR 1 432 229, that circumstance is purely an automatic result of the reduction applied to the maximum amount of the fine for which ACW could be held jointly and severally liable, which could not be extended to the applicant, since, when the 2009 decision was adopted, that company no longer constituted a single undertaking with ACW and CPA within the meaning of Article 101 TFEU (judgment on appeal, paragraphs 74 and 80).

248 Contrary to what the applicant claims, the application of a ceiling to the fine imposed on its former subsidiary could not have altered the latter’s liability for its participation in the infringement throughout the period of the infringement. The same applies to the applicant’s liability, in that, under both the 2009 decision and the contested decision, it remains liable for the infringement committed by its subsidiaries throughout that period. The application of the 10% ceiling to ACW only limited the latter’s share of the fine imposed on the single undertaking. As the Court of Justice stated in paragraph 72 of the judgment on appeal, in a situation such as the one at issue, the determination of maximum amounts in points 31(a), 31(b) and 32 of the second paragraph of Article 2 of the 2009 decision, as amended by the contested decision, does not reflect the specific periods during which the entities forming the single undertaking participated in the infringement at issue.

249 The proportionality of the fine for which the applicant is held jointly and severally liable with the other companies forming the single penalised undertaking, resulting from the 2009 decision, is not altered by the contested decision since the applicant remains, by virtue of that decision, jointly and severally liable for the same maximum amount of the fine. The proportionality of the maximum amount of the fine which may be imposed on the applicant is therefore not called into question by the fact that it remains solely liable to pay part of that fine, given that the maximum amount was reached for the others.

250 The third plea and the claim for annulment must therefore be rejected in their entirety.

251 In its application, the applicant requests, in the alternative, that the General Court exercise its unlimited jurisdiction in order to reduce the amount of the fine imposed on it and to set a new date for due payment and interest, after the adoption of the contested decision.

252 In its defence, the Commission contends that the claim for alteration of the contested decision is inadmissible.

253 First of all, according to the Commission, the applicant cannot challenge the amount of the fine imposed in the 2009 decision without infringing the principle of res judicata, since that decision has become final in so far as it is concerned.

254 Next, the applicant has not put forward a stand-alone plea in support of its claim for reduction in the amount of the fine.

255 Lastly, holding the claim for reduction in the amount of the fine to be admissible would require the General Court to call into question the judgments of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), and of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507).

256 So far as concerns the claim for alteration, the applicant contends that it also has standing to bring proceedings since, first, contrary to what the Commission contends, it has put forward its pleas in law in support of that claim, alleging, in particular, that the 10% ceiling should be applied and that the principle of equal treatment has been infringed.

257 Secondly, the claim for alteration of the amount of the fine cannot challenge the principle of res judicata, inasmuch as that principle extends only to matters of fact and law on which the General Court has actually ruled.

258 In the case which gave rise to the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), the General Court did not go as far as to rule on the determination of the applicant’s joint and several liability with ACW and CPA, since that question was raised only after the adoption of the 2010 decision. Moreover, that decision was annulled by the General Court’s judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

259 Thirdly, the applicant was entitled, at the time of the administrative procedure leading to the adoption of the contested decision, to challenge the amount of its proposed fine, as the General Court acknowledged in paragraph 83 of its judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504).

260 In that regard, first, it should be noted that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of the applicant, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (see judgment of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 104 and the case-law cited).

261 The scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the EU judicature may in no circumstances substitute its own reasoning for that of the author of the contested act (see judgment of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 105 and the case-law cited).

262 By contrast, when it exercises its unlimited jurisdiction laid down in Article 261 TFEU and Article 31 of Regulation No 1/2003, the EU judicature is empowered, in addition to merely reviewing the legality of the penalty, to substitute its own assessment in relation to the determination of the amount of that penalty for that of the Commission, the author of the act in which that amount was initially fixed. Consequently, the EU judicature may alter the contested act, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed, that jurisdiction being exercised by taking into account all the factual circumstances (see judgment of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 106 and the case-law cited).

263 It is therefore only after the EU judicature has finished reviewing the legality of the decision referred to it, in the light of the pleas in law submitted to it and of grounds which, where applicable, it has raised of its own motion, that, in the event that it does not annul the decision in full, it should exercise its unlimited jurisdiction in order, first, to draw the appropriate conclusions from its findings with respect to the lawfulness of that decision and, secondly, to establish, according to the information which has been brought to its attention, whether it is appropriate, on the date on which it adopts its decision, to substitute its own assessment for that of the Commission, so that the amount of the fine is appropriate (see judgment of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 67 and the case-law cited).

264 That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the gravity and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the EU judicature being bound by the indicative rules defined by the Commission in its guidelines, even where the latter may give guidance to the EU judicature when they exercise their unlimited jurisdiction (judgments of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90, and of 24 September 2019, Printeos and Others v Commission, T‑466/17, EU:T:2019:671, paragraph 164).

265 Secondly, the exercise of unlimited jurisdiction is not equivalent to an own-motion review, 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 (judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 32).

266 The absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court – which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts – should be obliged to undertake of its own motion a new and comprehensive investigation of the file. Unlimited jurisdiction does not therefore require the General Court to undertake of its own motion a new and comprehensive investigation of the case, independently of the claims put forward by the applicant (judgment of 26 January 2017, Duravit and Others v Commission, C‑609/13 P, EU:C:2017:46, paragraphs 33 and 36).

267 However, in order to fulfil the requirements of Article 47 of the Charter 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 judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 195 and the case-law cited).

268 Thirdly, the scope of that unlimited jurisdiction is to be strictly confined, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 76 and the case-law cited).

269 In the present case, in the first place, as regards the pleas of inadmissibility raised by the Commission in respect of the claim for alteration, first, the applicant rightly points out that it follows from settled case-law that the force of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (see judgment of 13 September 2017, Pappalardo and Others v Commission, C‑350/16 P, EU:C:2017:672, paragraph 37 and the case-law cited). As is also apparent from paragraphs 89 to 92 above, the applicant could not challenge, in its action in the case which gave rise to the judgment of 15 July 2015, GEA Group v Commission (T‑45/10, not published, EU:T:2015:507), brought against the 2009 decision, the correction made by the Commission concerning the application of the 10% ceiling in favour of ACW, since that correction was made only in the 2010 decision. Furthermore, that decision was annulled in respect of the applicant. Therefore, as is also apparent from the findings in, inter alia, paragraphs 83 and 86 (not published) of the judgment of 15 July 2015, GEA Group v Commission (T‑189/10, EU:T:2015:504), any error on the part of the Commission as regards the failure to extend to the applicant the reduction in the maximum amount of the fine which the Commission may claim from ACW could justify a reduction in the maximum amount of the fine which the Commission may claim from the applicant. In so far as the applicant claims that that question concerns the assessment of the appropriateness of the penalty in the light of the infringement committed (see paragraph 267 above), there is nothing to preclude it from being a matter of unlimited jurisdiction.

270 Secondly, it is indeed true that the applicant has not put forward a stand-alone plea, or even any argument, specifically seeking the alteration of the contested decision. However, it follows from the case-law cited in paragraph 267 above that 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. Moreover, as the applicant argues, it has put forward pleas in law relating, in particular, to the application of the 10% ceiling and to an infringement of the principle of equal treatment which, in its view, could have an impact on the appropriateness of the penalty for the infringement committed. In that respect, the claim for alteration is admissible.

271 In the second place, on the other hand, the part of the applicant’s head of claim in which it asks the General Court to set a new date for payment of the fine and interest, after the adoption of the contested decision, does not concern the determination of the amount of the fine (see paragraph 268 above), for which the General Court has unlimited jurisdiction, and must therefore be rejected as inadmissible.

272 That is all the more so since, unlike the aspects mentioned in the case-law cited in paragraph 267 above, the arguments relating to the date by which the fine was payable and the date from which default interest started to run are unrelated to the appropriateness of the amount of the fine in the light of the duration and the gravity of the infringement.

273 Moreover, questions relating solely to default interest do not concern the amount of the fine as such, but are incidental to it.

274 In any event, first, since the examination of the second part of the second plea and the fifth plea, which relate to that application, has not revealed any illegality or irregularity vitiating the contested decision, the claim for alteration cannot be accepted in so far as it asks the General Court to draw the inference, with respect to the alteration requested, from those illegalities or irregularities (see, by analogy, judgment of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 226).

275 Secondly, in so far as the applicant claims that the Commission cannot require it to pay default interest in so far as the delay in payment is attributable to it (see paragraph 139 above), it need merely be noted that, by choosing a date on which default interest begins to accrue which is after the date by which the fine was payable, which itself is after the due date set in the legal basis for the fine, namely the 2009 decision, the Commission did not act unfairly with regard to the applicant. Instead, that choice was made to the benefit of the applicant.

276 Moreover, the applicant has not alleged any other circumstance capable of calling into question the proportionality and fairness of the determination of the date by which the fine was payable and the moment from which default interest ran.

277 In the third place, as regards the application for a reduction of the fine, it is necessary, in accordance with the case-law cited in paragraph 267 above, to examine the pleas put forward by the applicant in order to identify and, where appropriate, to assess, in the light of the criteria referred to in paragraph 264 above, the grounds on which it challenges the appropriateness of the fine in the light of the infringement committed.

278 At the outset, it should be noted that since all the pleas for annulment of the contested decision have been rejected, the claim for alteration cannot be accepted in so far as it asks the General Court to draw the inference, with respect to the amount of the fine, from the alleged infringements (see, by analogy, judgment of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 226).

279 Next, it is appropriate to ascertain, in the light of all the evidence in the file, especially that put forward by the applicant, whether the General Court should substitute, under its unlimited jurisdiction, a different amount for the fine than that adopted by the Commission, on the grounds that the latter amount is not appropriate (see, by analogy, judgment of 17 December 2015, Orange Polska v Commission, T‑486/11, EU:T:2015:1002, paragraph 227).

280 The first plea alleges infringement of the rules on limitation periods, so that if it is well founded then it can result only, in the present case, in the annulment of the contested decision in its entirety. It cannot lead to a reduction in the amount of the fine (see, by analogy, judgment of 12 July 2019, Hitachi-LG Data Storage and Hitachi-LG Data Storage Korea v Commission, T‑1/16, EU:T:2019:514, paragraph 141 (not published)). Furthermore, it cannot be analysed as containing complaints about the appropriateness of the penalty for the infringement committed.

281 In the first part of its second plea, the applicant claims that the Commission infringed Article 266 TFEU and its rights of defence by adopting the decision without having heard its oral argument, even though it had submitted a request for an oral hearing. As is apparent from paragraph 207 above, if that part of the plea is well founded then it can result only in the annulment of the contested decision. It cannot lead to a reduction in the amount of the fine (see, by analogy, judgment of 12 July 2019, Hitachi-LG Data Storage and Hitachi-LG Data Storage Korea v Commission, T‑1/16, EU:T:2019:514, paragraph 141 (not published)). It also cannot be analysed as containing complaints about the appropriateness of the penalty for the infringement committed.

282 In its third plea, the applicant criticises the Commission, in the first place, for failing to give it the benefit of a reduction in the amount of the fine corresponding to the application of the ceiling of 10% of ACW’s turnover, contrary to Article 23(2) and (3) of Regulation No 1/2003. In the second place, the applicant claims that the contested decision infringes Article 23(2) and (3) Regulation No 1/2003 as it modifies the applicant’s liability, even though the gravity and the duration of the infringement have not changed.

283 The fourth plea alleges infringement of the principle of equal treatment. By that plea, the applicant complains that the Commission treated it in a discriminatory manner, on the one hand, by comparison with ACW and, on the other, by comparison with CPA.

284 As the applicant argues, the complaints raised in the context of those two pleas concern, inter alia, the appropriateness of the fine to the infringement, in that the applicant takes the view, in essence, that, despite the absence of any change in its liability for the infringement, it must pay the Commission a larger sum under the contested decision than under the 2009 decision, and even that its ability to bring an action for recovery before the national courts has been hindered.

285 While it is true that, by the contested decision, the Commission altered the external relationships of the three co-debtors in relation to the 2009 decision to the detriment of the applicant, it did not, however, act unlawfully. In particular, the contested decision has no impact on the proportionality of the fine imposed on the applicant, since the applicant is required to pay to the Commission exactly the same maximum amount of fine as that set out in the 2009 decision. Nor has the Commission infringed the principle of equal treatment in relation to the applicant, as is apparent from the response to the fourth plea. Furthermore, it should again be noted that the objective of joint and several liability for payment of a fine, which is the manifestation of an ipso jure legal effect of the concept of an undertaking, is that it constitutes an additional legal device available to the Commission to strengthen the effectiveness of the action taken by it for the recovery of fines imposed for infringement of the competition rules, since that mechanism reduces for the Commission, as creditor of the debt represented by such fines, the risk of insolvency, which is part of the objective of deterrence pursued generally by competition law (judgments of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 59, and of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 122). Accordingly, a reduction of the fine on grounds of fairness in respect of a parent company, following the application of the 10% ceiling to its former subsidiary, would, in the context of a finding of joint and several liability, run counter to those objectives.

286 Finally, as regards the second part of the second plea and the fifth plea, it has already been stated in paragraphs 271 and 272 above that they concern part of the heads of claim which are not admissible in the exercise of unlimited jurisdiction. That applies in particular to the part of the second complaint in the fifth plea relating to the failure to state reasons for the determination of the rate applicable to default interest. In any event, the applicant did not ask the General Court to reduce the interest rate. The General Court cannot rule ultra petita.

287 In those circumstances, the claim for alteration submitted by the applicant must be rejected, as must, consequently, the action in its entirety.

288 Pursuant to Article 219 of the Rules of Procedure, in decisions of the General Court given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Given that, in the judgment on appeal, the Court of Justice reserved the costs, it is for the General Court also to decide, in the present case, on the costs relating to the appeal proceedings.

289 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter, in the proceedings T‑640/16, T‑640/16 RENV and C‑823/18 P.

2. Orders GEA Group AG to bear its own costs and to pay those incurred by the European Commission in the proceedings T‑640/16, T‑640/16 RENV and C‑823/18 P.

Court of Justice of the European Communities (including Court of First Instance Decisions)