On 15 July 2015, the General Court ("GC") rendered a judgment in two applications for annulment brought by AkzoNobel in relation to the European Commission's Heat Stabilizers decision (T-47/10 AkzoNobel and Others v Commission and T-485/11 AkzoNobel and Akcros Chemicals v Commission). The judgments contain interesting points concerning limitation periods for the imposition of penalties and rights of defence.
In case T-47/10, AkzoNobel challenged the decision of the European Commission of 11 November 2009fining several undertakings for their involvement in two infringements in the heat stabilizers sector (the "2009 Decision"). AkzoNobel's application for annulment was partially granted and the fines imposed on several legal entities of the AkzoNobel group were annulled. In addition, a 1% reduction was applied to the remainder of the fines in view of the excessive duration of the proceedings (further explained below).
The application for annulment in case T-485/11 was brought against a Commission decision of 30 June 2011 that repealed the 2009 Decision vis-à-vis Elementis, another undertaking involved in the infringements, and required AkzoNobel to pay the total amount of the fine for which it was jointly and severally liable with Elementis (the "Amending Decision"). The GC ruled that the Commission breached AkzoNobel's rights of defence and annulled the Amending Decision in its entirety.
There are three noteworthy points in the judgments concerning rights of defence and related procedural safeguards.
First, in case T-47/10, the GC clarified that the time limits provided in Article 25 Regulation 1/2003, which bar the Commission from bringing action against a party after five years from the moment it ceases its participation in the infringement, benefit and can be invoked by each legal person individually. Therefore, contrary to the Commission's position, the time limit vis-à-vis a particular legal person starts running from the moment that that legal person ends its participation in the infringement. In the present case, there were different AkzoNobel entities involved for subsequent periods of time during the total infringement period. These infringing subsidiaries were each held liable for the period of their own participation. AkzoNobel, as the ultimate parent company of the (subsequent) infringing subsidiaries, was held liable for the entire cartel period. The GC annulled the fines on two subsidiaries that ended their participation because they transferred the heat stabiliser business to another subsidiary more than five years before the Commission first took action. However, the GC ruled that the fact that a particular subsidiary thus benefits from the expiry of the limitation period does not result in the parent company's liability being called into question. In this case, another subsidiary of the AkzoNobel group continued the participation in the infringement. Therefore, AkzoNobel remained liable for the entire infringement period.
Second, the GC ruled that the Commission breached the principle of equal treatment by granting a reduction of 1% in the amount of the fines due to the length of the administrative procedure to all other addressees of the 2009 Decision except for AkzoNobel. The Commission held that the long duration of the proceedings followed from the judicial proceedings initiated by AkzoNobel in relation to whether certain documents seized by the Commission were protected by legal professional privilege. The Court concluded that "irrespective of whether other undertakings would be deterred from exercising their rights to bring judicial proceedings" the Commission's position was incompatible with the principle of effective judicial protection. The Court of Justice thus found that the Commission violated the principle of equal treatment by granting a reduction of the fine to all undertakings except to AkzoNobel "solely on account of the Akzo judicial proceedings". Therefore, the Court of Justice reduced the amount of the fines imposed on AkzoNobel by 1%.
Third, in case T-485/11, the GC found that the Commission breached AkzoNobel's rights of defence by not affording it sufficient time to respond to the Amending Decision and defend its position. The Court noted that the Commission only afforded AkzoNobel a total of seven working days to respond after it announced its intention of amending the 2009 Decision. Such short periods are not compatible with respect for the rights of the defence. The Court annulled the Amending Decision as it considered that AkzoNobel would have been better able to defend itself without that procedural irregularity.