Judgment of the General Court (Fourth Chamber) of 16 November 2011 -
   Kendrion v Commission

   (Case T-54/06)

   Competition - Agreements, decisions and concerted practices - Plastic
   industrial bags sector - Decision finding an infringement of Article 81
   EC - Economic entity - Joint and several liability - Proportionality -
   Equal treatment - Fines - Maximum limit of 10% of turnover - Real
   ability to pay

   1.                     Competition - Community rules - Infringements -
   Attribution - Parent company and subsidiaries - Economic unit -
   Criteria for assessment - Presumption of decisive influence exercised
   by the parent company over its wholly-owned subsidiaries - Evidential
   obligations on a company seeking to rebut that presumption (Art. 81(1)
   EC) (see paras 49-52, 65-67)

   2.                     Competition - Fines - Assessment by reference to
   the individual conduct of the undertaking - Irrelevant that another
   economic operator not penalised (Art. 81(1) EC; Council Regulation No
   1/2003, Art. 23(2)) (see paras 77-78)

   3.                     Competition - Fines - Amount - Determination -
   Maximum amount - Calculation - Turnover to be taken into consideration
   - Cumulative turnover of all the companies constituting the economic
   unit acting as an undertaking - Limits (Art. 81(1) EC; Council
   Regulation No 1/2003, Art. 23(2)) (see paras 91-92)

   4.                     Competition - Fines - Amount - Determination -
   Principle of equal treatment - Differences between undertakings arising
   from application of the maximum amount - Lawfulness - No prohibition on
   imposing a higher fine on small and medium-sized undertakings (Art.
   81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice
   98/C 9/03) (see paras 106-107, 110-111, 149)

   5.                     Actions for annulment - Judgment annulling a
   measure - Effects - Annulment of a Commission decision finding a breach
   of the competition rules - No effect in relation to addressees which
   did not bring an action (Arts 81 EC, 230 EC and 249 EC) (see para. 119)

   6.                     Procedure - Application initiating proceedings -
   Formal requirements - Brief summary of the pleas in law on which the
   application is based - Admissibility of a reference to documents
   submitted to the same court in another case - Essential condition -
   Parties, in particular the applicants, must be the same in both cases -
   No possibility of remedying an infringement of the principle by
   reproducing the pleas concerned in the reply (Statute of the Court of
   Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1))
   (see paras 125-127)

   7.                     Competition - Community rules - Infringements -
   Fines - Determination - Criteria - Raising of the general level of
   fines - Lawfulness (Art. 81(1) EC; Council Regulation No 1/2003, Art.
   23(2)) (see paras 133-134)

   8.                     Competition - Fines - Amount - Determination -
   Criteria - Overall turnover of the undertaking concerned - Turnover
   corresponding to the goods covered by the infringement - To be taken
   into consideration - Limits (Art. 81(1) EC; Council Regulation No
   1/2003, Art. 23(2)) (see paras 141-143)

   9.                     Competition - Fines - Amount - Determination -
   Criteria - Financial situation of the undertaking concerned - To be
   taken into consideration - No obligation on the Commission to request
   detailed information on the financial situation of the undertaking
   (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission
   Notice 98/C 9/03, Section 5(b)) (see paras 161-163, 165)

   10.                     Competition - Fines - Amount - Determination -
   Division of the undertakings concerned into different categories -
   Conditions (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2);
   Commission Notice 98/C 9/03, Section 1A) (see paras 182-183)

   Re:

   APPLICATION for annulment of Commission Decision C (2005) 4634 final of
   30 November 2005 relating to a proceeding under Article 81 [EC] (Case
   COMP/F/38.354 - Industrial bags), in so far as it is addressed to the
   applicant, concerning a cartel on the market for plastic industrial
   bags, and application for annulment or, in the alternative, reduction
   of the fine imposed on the applicant.

   Operative part

   The Court:

   1.

   Dismisses the action;

   2.

   Orders Kendrion NV to pay the costs.