Judgment_paragraph 91 · Volkswagen AG v Commission of the European Communities (C-338/00 P)

91In a number of earlier decisions, the Commission and the Court proceeded on the basis of a normative notion of fault in finding a fault specific to the undertaking instead of simply attributing to it the fault of natural persons (sec Commission Decision 82/203/EEC of 27 November 1981 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.188 — Moët et Chandon (London) Ltd) (OJ 1981 L 94, p. 7, at p. 10) and Commission Decision 82/267/EEC of 6 January 1982 relating to a proceeding under Article 85 of the EEC Treaty (IV/28.748 — AEG-Telefunken) (OJ 1982 L 117, p. 15, at p. 27)). The fact of referring to blame specific to the undertaking itself is, however, only recognition of an organisational fault for which the various objectively illegal activities engaged in by employees were not taken into consideration. In the present case, neither the contested decision nor the judgment under appeal, the latter confirming the former, makes it possible to identify what this fault of which the appellant is accused might be. The Commission and Court of First Instance ought, at the very least, to have demonstrated that the appellant was open to criticism for shortcomings in its organisation or for breaches of its duty of surveillance (see, in this connection, point 17 of Commission Decision 83/667/EEC of 5 December 1983 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.671 — IPTC Belgium) (OJ 1983 L 376, p. 7) and point 21 of Commission Decision 85/79/EEC of 14 December 1984 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.809 — John Deere) (OJ 1985 L 35, p. 58)).