1

The present dispute concerns the Commission Decision of 30 June 2011 (‘the contested decision’) amending, in so far as it was addressed to the applicants, Akzo Nobel NV and Akcros Chemicals Ltd, Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38.589 — Heat Stabilisers; ‘the first decision’).

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35

By application lodged at the Court Registry on 12 September 2011, the applicants brought an action against the contested decision.

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56

In the present case, the applicants claim that the Court should:

57

The Commission contends that the Court should:

58

In support of their application, the applicants put forward three pleas in law.

59

By their third plea, the applicants claim that the Commission breached their rights of defence by failing to send them a new statement of objections even though it was required to do so before adopting the contested decision.

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66

In that regard, it must be recalled at the outset that the right to be heard, which is an essential component of the rights of the defence, constitutes a general principle of EU law which must be complied with in any procedure, even an administrative one, especially where penalties, in particular fines, may be imposed, and that that principle implies, inter alia, that the undertaking concerned must have the opportunity during the administrative procedure to make its views known (see, to that effect, judgments of 13 February 1979 in Hoffmann-La Roche v Commission, 85/76, ECR, EU:C:1979:36, paragraph 9; 7 June 1983 in Musique diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158; and 7 January 2004 in 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, ECR, EU:C:2004:6, paragraphs 64 to 66).

67

Article 27(1) of Regulation No 1/2003 reflects that principle in so far as it 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 in order to enable the parties concerned properly to identify the conduct complained of by the Commission and the evidence which it has at its disposal (see, to that effect, judgments of 15 October 2002 in 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, ECR, EU:C:2002:582, paragraphs 315 and 316, and Aalborg Portland and Others v Commission, cited in paragraph 66 above, EU:C:2004:6, paragraphs 66 and 67).

68

Moreover, observance of the rights of the defence requires, in particular, that the undertaking under investigation has been afforded the opportunity during the administrative procedure 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 of the Treaty (judgments in Musique diffusion française and Others v Commission, cited in paragraph 66 above, EU:C:1983:158, paragraph 10; 25 January 2007 in Dalmine v Commission, C‑407/04 P, ECR, EU:C:2007:53, paragraph 44, and 10 May 2007 in SGL Carbon v Commission, C‑328/05 P, ECR, EU:C:2007:277, paragraph 71).

69

In the circumstances of the present case, and regardless of whether the Commission was obliged to send the applicants a fresh statement of objections before adopting the contested decision, it is clear that in the Commission’s letters and e-mail, referred to in paragraphs 20 to 22 and 25 above, the Commission did indeed invite the applicants to make their views known.

70

Nevertheless the applicants were afforded only four working days, namely from Wednesday 1 June to Monday 6 June 2011, following the Commission’s letters, and three working days, namely from Wednesday 15 June to Friday 17 June 2011, following the e-mail of the Commission, in which it could make those views known.

71

Such short periods are not compatible with respect for the rights of the defence.

72

Consequently, the contested decision must be annulled, provided that the applicants have sufficiently demonstrated not that, without that procedural irregularity — that is to say, if they had had a reasonable amount of time to make their views known — the contested decision would have been different in substance, but that they would have been better able to defend themselves without that irregularity (see, to that effect, judgment of 18 June 2013 in Fluorsid and Minmet v Commission, T‑404/08, ECR, EU:T:2013:321, paragraph 110 and the case-law cited), which is to be determined by reference to the time of the administrative procedure leading to the adoption of the contested decision, that is to say, before the date on which the decision was adopted, namely 30 June 2011 (see, to that effect, judgment of 27 September 2006 in Archer Daniels Midland v Commission, T‑329/01, ECR, EU:T:2006:268, paragraph 377).

73

In that regard, first, it should be noted that, at the time of the administrative procedure leading to the adoption of the contested decision, it was a matter of debate as to what the Commission’s obligations were in respect of the joint and several liability between companies that were joint and several debtors, inasmuch as they had formed a single undertaking within the meaning of Article 101 TFEU.

74

In its judgment of 3 March 2011, less than four months before the date of the adoption of the contested decision, the Court held that it is exclusively for the Commission, in exercising its power to impose fines under Article 23(2) of Regulation No 1/2003, to determine the various companies’ respective shares of the fines imposed on them jointly and severally in so far as they formed part of the same undertaking, and that that task could not be left to the national courts (judgment of 3 March 2011 in Siemens and VA Tech Transmission & Distribution v Commission, T‑122/07 to T‑124/07, ECR, EU:T:2011:70, paragraph 157).

75

That point was all the more debatable at the time of the administrative procedure leading to the adoption of the contested decision in that subsequently the judgment in Siemens and VA Tech Transmission & Distribution v Commission, cited in paragraph 74 above (EU:T:2011:70), was set aside by the Court of Justice on the grounds that the allocation of the fine between joint and several debtors fell exclusively within the jurisdiction of the national courts (judgment in Siemens, cited in paragraph 42 above, EU:C:2014:256, paragraph 62).

76

Accordingly, during the administrative procedure leading to the adoption of the contested decision and, thus, before the delivery of the judgment in Siemens, cited in paragraph 42 above (EU:C:2014:256), the applicants could have argued they were entitled to be granted a reduction of the amount of the fine imposed on Elementis with which they had been held to be jointly and severally liable for the infringement committed by the Akcros partnership since, at the time of the infringement, they together had formed an undertaking within the meaning of Article 101 TFEU.

77

Therefore, the applicants could, at the time of the administrative procedure leading to the adoption of the contested decision, have defended themselves better if they had had sufficient time to make their views known.

78

Second, it is undisputed that, in the contested decision, the Commission’s intention was to draw the appropriate inferences from the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190).

79

Thus, the Commission, in the contested decision, considered that the suspension of the limitation period in respect of the applicants was not effective erga omnes, but only inter partes, that is to say, in the circumstances of the present case, that that suspension did not apply to Elementis.

80

First, it should be recalled that the Court of Justice, in the case which gave rise to the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190), gave a ruling on the inter partes effects of a suspension of the limitation period for several undertakings, within the meaning of Article 101 TFEU, which participated in the same infringement (judgment in ArcelorMittal, cited in paragraph 21 above, EU:C:2011:190, paragraph 148).

81

Second, in the present case, Elementis and the applicants constituted, during the second infringement period, a single undertaking within the meaning of Article 101 TFEU, as has been held in paragraph 405 of today’s judgment in Case T‑47/10.

82

Thus, regardless of whether the Commission was entitled to extend the approach adopted by the Court of Justice in the case which gave rise to the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190), which related to several undertakings involved in the same infringement, to a situation, such as that in the present case, relating to several companies which constituted a single undertaking during the second infringement period, it must be held that, in particular in relation to that question, the applicants could, at the time of the administrative procedure which led to the adoption of the contested decision, have defended themselves better if they had had sufficient time to make their views known.

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On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby: