Judgment_paragraph 57 · Kendrion NV v European Commission (C-50/12 P)

57In the present case, as the General Court observed in paragraph 87 of the judgment under appeal, the amount which the Commission considered appropriate in order to penalise Fardem Packaging’s participation in the cartel for a period exceeding 20 years was not the EUR 2.20 million referred to in the operative part of the contested decision, but EUR 60 million, that is an amount higher than the EUR 34 million established for Kendrion for the period in which Kendrion and Fardem Packaging constituted a single undertaking for the purpose of Article 81 EC. As the General Court observed in paragraph 89 of the judgment under appeal, the reason why the Commission, in the contested decision, imposed a fine of EUR 34 million on the appellant and a fine of EUR 2.20 million on Fardem Packaging was because of the application to Fardem Packaging of the 10% ceiling laid down by Article 23(2) of Regulation No 1/2003. In that context, the General Court was fully entitled to hold, in paragraphs 92 and 93 of the judgment under appeal, that, where two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking within the meaning of Article 81 EC on the date on which a decision imposing a fine on them for breach of the competition rules is adopted, each of them is entitled to have the 10% ceiling applied individually to itself and that, in those circumstances, Kendrion could not claim to benefit from the ceiling applicable to its former subsidiary.