26.10.2013

Official Journal of the European Union

C 313/9

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(Case C-434/13 P)

2013/C 313/17

Language of the case: English

Parties

Appellant: European Commission (represented by: S. Noë, V. Bottka, R. Sauer, Agents)

Other parties to the proceedings: Parker ITR Srl, Parker-Hannifin Corp.

Form of order sought

The appellant claims that the Court should:

—set aside the Judgment insofar as it annuls the Decision and adjusts the fine;

—dismiss the action before the General Court in its entirety;

—require the Applicants to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

Pleas in law and main arguments

The Commission raises two grounds of appeal, and requests the Judgment to be partially set aside insofar as it annuls the Decision in Case COMP/39406 — Marine Hoses and adjusts the fine.

In the first ground of appeal it is submitted that the General Court erred in law by ignoring or incorrectly applying the case law on intra-group economic succession on the one hand and the case law on the transfer of liability between consecutive undertakings on the other hand. By treating the asset transfer from ITR to Parker ITR (at the time called ITR Rubber) (within the Saiag group) and the subsequent share deal (transfer of the shares in Parker ITR from Saiag to Parker-Hannifin) together, the General Court incorrectly assumes an inter-group transfer of the infringing business from Saiag to Parker-Hannifin. The General Court errs by assessing economic continuity only as a possible transfer of liability between the independent undertakings Saiag and Parker-Hannifin, because this ignores the already accomplished intra-group economic succession to Parker ITR. In doing so, the Judgment relies on subjective intentions, namely the fact that the incorporation of the marine hoses business into Parker ITR was part of an objective of selling that subsidiary's shares to a third party. However, such intentions of the parties are not an obstacle to applying the case-law on intra-group economic succession (C-204/00 P Aalborg, C-280/06 ETI, C-511/11 P Versalis, T-43/02 Jungbunzlauer and T-405/06 and Joined Cases C-201/09 P and C-216/09 P ArcelorMittal), according to which economic succession takes place at the time of an intra-group transfer insofar as there are ‘structural links’ between the transferor (here: Saiag/ITR) and the receiving entity (here: Parker ITR). Moreover, there is a difference in law between a transfer of assets and the transfer of a legal person. In the latter case, the transferred entity will carry its own liability for any infringement prior to the transfer, and this may include liability as economic successor for assets transferred to the entity at a time when it was still part of the infringing undertaking. The fact that other legal entities in the undertaking could also have been held liable (although not fined in this case) is not a valid reason to exclude holding liable as economic successor the transferred subsidiary Parker ITR.

The second ground of appeal is that, in the context of the exercise of its unlimited jurisdiction, the General Court acted ultra petita and unlawfully reduced the uplift for duration in the fine corresponding to EUR 100 000 for the parent company Parker Hannifin. Neither the actual duration of its participation in the infringement nor the corresponding duration factor in the calculation of the fine was challenged by Parker-Hannifin (or Parker ITR). While Parker-Hannifin successfully challenged the aggravating circumstance for leadership, for which the General Court adjusted the fine, this should not open the possibility for the General Court, even when it exercises its unlimited jurisdiction, to modify other aspects of the fine (here: the factor for duration) against which the applicant did not raise a plea.

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