GC, 3rd chamber, May 6, 2026, No T-87/25

1.By its action under Article 263 TFEU, the applicant, Westfälisches Textilwerk Adolf Ahlers Stiftung & Co. KG, seeks, principally, annulment, in essence, of point (b) of the first paragraph of Article 2 and Article 3 of Commission Decision C(2024) 8150 final of 28 November 2024 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.40642 – Pierre Cardin) (‘the contested decision') and, in the alternative, a reduction in the amount of the fine imposed on it.

Background to the dispute

2.Following a complaint lodged on 25 March 2019, the European Commission, on the basis of Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), found in the contested decision that, during the period from 1 January 2008 to 31 March 2021 (‘the infringement period'), Pierre Cardin Evolution and Société de Gestion Pierre Cardin (‘the Pierre Cardin companies') and the applicant had participated in agreements or concerted practices relating to the marketing of Pierre Cardin-branded products.

3.During the infringement period, the applicant was the parent company of a group of undertakings (‘the Ahlers group') and thus indirectly held the majority share of the voting capital of Ahlers AG, including its subsidiaries (‘Ahlers AG'). During that period, Ahlers AG held the majority of the capital of several subsidiaries.

4.The core business of the Ahlers group was, during the infringement period, the manufacture and distribution of clothing in Europe, mainly under the Pierre Cardin brand.

5.In late April 2023, Ahlers AG filed for insolvency, and preliminary insolvency administrators were appointed.

6.On 15 July 2023, formal insolvency proceedings were opened concerning Ahlers AG and control over the insolvent entities was thus transferred to the insolvency administrators. On the same day, the insolvency administrators sold the business operations of Ahlers AG and transferred them irreversibly to an independent third-party investor.

7.Following the exchanges between the insolvency administrators and the Commission services, those services informed those administrators by letter of 18 July 2023 of their intention not to impose a fine on the purchaser of Ahlers AG, in its capacity as economic successor of Ahlers AG. However, those services stated that, at that stage of the investigation, that communication was not of a formal nature and was not binding on the Commission.

8.On 18 March 2024, the applicant submitted a request for a reduction in the amount of the fine which had been previously notified to it by the Commission. In support of that request, the applicant relied on point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2), claiming that it was unable to pay.

9.Following that request, the Commission, in recitals 508 to 519 of the contested decision, considered, in essence, that the turnover to be taken into consideration in calculating the ceiling of the fine as provided for in Article 23(2) of Regulation No 1/2003 was the applicant's consolidated turnover relating to the last business year preceding the adoption of the contested decision, which ran from 1 December 2022 to 30 November 2023. Thus, the turnover used by the Commission to calculate the ceiling included not only the turnover achieved by the applicant during that period, but also that achieved by Ahlers AG until 15 July 2023.

10.In the contested decision, the Commission then stated, in recital 531, as follows:

‘Based on the evidence described in Annex I and in order to avoid the imposition of a fine that would seriously jeopardise the economic viability of Ahlers, the final amount to be imposed on [the applicant] should be reduced to the amount of EUR 3500000, in application of point 35 of the Guidelines on Fines. This amount represents a reduction of about 66.09%.'

11.In Article 1 of the contested decision, the Commission found that the applicant and the Pierre Cardin companies had infringed Article 101(1) TFEU and Article 53 of the EEA Agreement by participating in a single and continuous infringement covering the whole of the European Economic Area (EEA), which consisted in agreements or concerted practices having as their object the distortion of competition within the internal market.

12.In point (b) of the first paragraph of Article 2 of the contested decision, the Commission, having regard to the infringement found, imposed on the applicant a fine of EUR 3500000.

13.By letter annexed to the contested decision, the Commission replied to the application for a reduction of the fine (see paragraph 8 above). It thus decided, in Article 3 of the contested decision, that the applicant was authorised to pay the fine in instalments, provided that the sum of EUR 250000 was paid within three months of the date of the decision. The remaining amount was to be paid in three annual instalments, namely EUR 750000 by 30 June 2026 at the latest, EUR 1000000 by 30 June 2027 at the latest, and EUR 1500000 by 30 June 2028 at the latest, including, for each of those instalments, the interest calculated on the outstanding amounts for the period until the date of the payment.

14.According to Article 5 of the contested decision, only the applicant and the Pierre Cardin companies were addressees of that decision. By contrast, it was not addressed to Ahlers AG.

Forms of order sought

15.The applicant claims that the Court should:

–principally, annul, in essence, point (b) of the first paragraph of Article 2 and Article 3 of the contested decision;

–in the alternative, reduce the amount of the fine imposed on the applicant;

–order the Commission to pay the costs.

16.The Commission contends that the Court should:

–dismiss the action;

–in the alternative, set the amount of the fine imposed on the applicant at an amount that it deems appropriate;

–order the applicant to pay the costs.

Law

17.As a preliminary point, it should be noted that, by its action, the applicant does not dispute the Commission's findings, set out in the contested decision, that its conduct constitutes an infringement of the rules of EU competition law. Nor does it dispute the Commission's assessment of its inability to pay set out in the letter annexed to the contested decision (see paragraphs 8 and 13 above).

18.By the present action, the applicant seeks only the annulment of the contested decision as regards the amount of the fine imposed on it, as provided for in point (b) of the first paragraph of Article 2 and Article 3 of that decision. The applicant thus seeks the partial annulment of the contested decision or, in the alternative, that the amount of the fine be reduced by the General Court in the exercise of its unlimited jurisdiction, such that the fine does not exceed 10% of the turnover that it achieved in its last full business year preceding the adoption of the contested decision.

The main heads of claim

19.In support of its action, the applicant relies on a single plea in law, alleging that the Commission made errors of law and of assessment and infringed Article 23(2) of Regulation No 1/2003 by wrongly applying the ceiling of 10% of annual turnover when determining the amount of the fine. It claims, in essence, in a first complaint, that the Commission failed to take account of the fact that the ceiling of the fine corresponding to 10% of turnover applied to separate economic units individually. In a second complaint, it submits that, at the time when the contested decision was adopted, Ahlers AG did not form part of the same economic unit as it. By a third complaint, it submits that the Commission erred in the contested decision by taking into account the turnover achieved by Ahlers AG when calculating the ceiling of the fine imposed on it. In a fourth complaint, it submits that the case-law cited in the contested decision does not support the Commission's approach and, in a fifth complaint, it submits that the Commission's approach leads to an inappropriate outcome, in so far as such an approach results in a disproportionate amount of the fine, which cannot be justified by considerations relating to the need to ensure the effectiveness of penalties in competition matters.

The first four complaints of the single plea in law, alleging errors committed by the Commission (i) in finding that the applicant and Ahlers AG belonged to a single economic unit for the purposes of calculating the ceiling of the fine imposed and (ii) in taking into account, when calculating that ceiling, the turnover achieved by Ahlers AG

20.By the first four complaints of the single plea, which it is appropriate to deal with together, the applicant, in essence, complains that the Commission failed to take account, when calculating the upper limit of the fine imposed on it, of the fact that, at the time when the contested decision was adopted, Ahlers AG and the applicant no longer formed part of the same economic unit. The Commission thus erred in law by taking into account, when calculating that ceiling, the applicant's consolidated turnover and, consequently, by taking account of the turnover achieved by Ahlers AG in the calculation of the ceiling of the fine provided for in Article 23(2) of Regulation No 1/2003.

21.As a preliminary point, the applicant states that it is apparent from the case-law that the objective of setting the ceiling of the fine of 10% of turnover is to ensure that a fine is not disproportionate to the size of the undertaking penalised, thus seeking to prevent a serious effect on its economic viability, which would risk driving it out of the market.

22.Furthermore, first, it is apparent from the wording of Article 23(2) of Regulation No 1/2003, without the Commission having any discretion in that regard, that the ceiling of the fine of 10% of turnover must be calculated individually for any undertaking concerned with regard to the economic unit as it stands at the time the decision imposing the fine is adopted. Relying in particular on the judgments of 26 November 2013, Kendrion v Commission (C ‑ 50/12 P, EU:C:2013:771), and of 25 November 2020, Commission v GEA Group (C ‑ 823/18 P, EU:C:2020:955), the applicant submits that where, prior to the adoption of a decision imposing a fine, an economic unit which previously existed has been altered, the ceiling of the fine should apply individually to each of the economic units and be calculated on the basis of the turnover which each of them achieved. That is the case here in so far as, on 15 July 2023, that is to say, prior to the adoption of the contested decision, formal insolvency proceedings were opened and as, on the same date, Ahlers AG's business operations were transferred to a third party. Consequently, by taking into account, when determining that ceiling, an incorrect amount of turnover, the contested decision infringed Article 23(2) of Regulation No 1/2003.

23.Second, the applicant claims that, under German insolvency law, it did not, as a shareholder of Ahlers AG, have the power to influence the insolvency proceedings and the sales process. According to the applicant, insolvency administrators must sell the company's assets in order to satisfy its creditors. The applicant then states that, in the present case, Ahlers AG's creditors would not be fully satisfied, so that there would not be any remaining surplus that could be paid to it as a shareholder of Ahlers AG. Furthermore, the Commission was closely involved in the process of selling Ahlers AG, while providing a confirmation that no liability for a fine would be attributed to the assets transferred or to the purchaser of those assets.

24.Third, the applicant submits that it follows from the case-law that the sale of a subsidiary by a parent company may break up the economic unit which previously existed between them. In that regard, it asserts that, in the present case, even though the sale was carried out by means of a combined asset and share deal and that although, as a company in liquidation, Ahlers AG continues to exist legally, it must be stated that the assets and shares which the applicant owned in that company and its shares in non-insolvent subsidiaries and, therefore, the business operations of Ahlers AG were definitively transferred to the purchaser, with the result that the applicant was irretrievably deprived of them.

25.Fourth, the applicant submits that the case-law cited in Section 10.3.5 of the contested decision, in particular the judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission (C ‑ 702/19 P, EU:C:2020:857), is not applicable in the present case, since that case-law concerns only the determination of the relevant business year for the calculation of the ceiling of the fine. The applicant submits that the Commission thus erred in relying on that case-law in order to justify, wrongly, the taking into account of the turnover achieved by a separate economic unit, Ahlers AG, for the purpose of calculating the ceiling of the fine imposed on it. In other words, according to the applicant, the 10% ceiling should be established by reference (i) to the relevant economic unit and (ii) to the relevant reference year relating to that economic unit. The case-law does not allow those two consecutive steps to be conflated, as otherwise the provisions of Article 23(2) of Regulation No 1/2003 would be infringed.

26.The Commission contests those arguments.

27.It should be noted that, by the first four complaints of the single plea in law, the applicant, in essence, disputes the fact that, in the contested decision, the Commission did not calculate the ceiling of 10% of the individual turnover of each of the companies in the group, but did so on the basis of its consolidated turnover, which included that achieved by Ahlers AG, whereas, at the time when the contested decision was adopted, the two undertakings no longer formed part of the same economic unit. It thus submits that, by taking the view that the relevant ‘preceding business year', within the meaning of Article 23(2) of Regulation No 1/2003, was that which had run between 1 December 2022 and 30 November 2023, the Commission erred in calculating the ceiling of the fine imposed on it. The Commission should only have taken into account the applicant's turnover achieved during that period, without including in it the turnover generated by Ahlers AG.

28In the first place, as regards the applicant's liability for the infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement penalised by the contested decision, it should be recalled that Article 23(2) of Regulation No 1/2003 provides that the Commission may impose fines on undertakings which infringe Article 101 TFEU provided that, for each undertaking participating in the infringement, the fine does not exceed 10% of its total turnover in the preceding business year.

29However, neither Article 23(2)(a) of Regulation No 1/2003 nor the case-law lays down which legal or natural person the Commission is obliged to hold responsible for the infringement or to punish by the imposition of a fine (see judgment of 27 April 2017, Akzo Nobel and Others v Commission, C ‑ 516/15 P, EU:C:2017:314, paragraph 51 and the case-law cited).

30.According to settled case-law, the unlawful conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company, having regard especially to the economic, organisational and legal links between those two legal entities. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of EU competition law (see judgment of 27 April 2017, Akzo Nobel and Others v Commission, C ‑ 516/15 P, EU:C:2017:314, paragraphs 52 and 53 and the case-law cited).

31.Furthermore, according to settled case-law, the parent company to which the unlawful conduct of its subsidiary is attributed is held individually liable for an infringement of the EU competition rules which it is itself deemed to have infringed, because of the decisive influence which it exercised over the subsidiary and by which it was able to determine the subsidiary's conduct on the market (see judgment of 27 April 2017, Akzo Nobel and Others v Commission, C ‑ 516/15 P, EU:C:2017:314, paragraph 56 and the case-law cited).

32EU competition law is based on the principle of the personal responsibility of the economic unit which has committed the infringement. Thus, if the parent company is part of that economic unit, it is regarded as personally jointly and severally liable with the other legal persons making up that unit for the infringement committed (see judgment of 27 April 2017, Akzo Nobel and Others v Commission, C ‑ 516/15 P, EU:C:2017:314, paragraph 57 and the case-law cited).

33.It also follows from the case-law that where there are several natural or legal persons, such as a parent company and a subsidiary, which may be held liable for the unlawful conduct of the relevant undertaking, the Commission is free to choose to impute the conduct to one of them or each of them at the same time (see, to that effect, judgment of 25 October 2011, Uralita v Commission, T ‑ 349/08, not published, EU:T:2011:622, paragraphs 58 to 60 and the case-law cited).

34.In the present case, it must be borne in mind that, in recital 474 of the contested decision, the Commission considered, without being contradicted by the applicant, that Ahlers AG and another undertaking had not decided independently on their conduct in matters relating to Pierre Cardin-branded products, but had carried out, in all material respects, the instructions received from the applicant. According to the Commission, those undertakings formed a single economic unit with the applicant for the purpose of applying Article 101(1) TFEU and Article 53 of the EEA Agreement.

35.It must therefore be held (i) that the applicant participated in the infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement penalised in the contested decision (see paragraph 2 above) and (ii) that, throughout the infringement period and also during part of the business year taken into consideration by the Commission in calculating the fine imposed on it, that is to say, between 1 December 2022 and 15 July 2023, the applicant was the parent company of the Ahlers group and, therefore, indirectly held the majority of Ahlers AG's capital (see paragraphs 3 and 9 above).

36.In that regard, the applicant does not dispute that the opening of formal insolvency proceedings concerning Ahlers AG and the transfer of Ahlers AG's business operations on 15 July 2023 to a third party (see paragraph 6 above) do not remove its liability for the infringement found and penalised in the contested decision.

37.Irrespective of the opening of insolvency proceedings and the subsequent transfer of the business operations, which resulted in the applicant and Ahlers AG no longer forming part of the same economic unit at the time of the adoption of the contested decision, the applicant does not dispute the fact that the Commission, in the contested decision, regarded it as liable for the infringement found, without, however, declaring it jointly and severally liable with Ahlers AG.

38.Thus, the Commission found, in Article 1 of the contested decision, that the applicant and two other companies, namely the Pierre Cardin companies, had infringed Article 101(1) TFEU and Article 53 of the EEA Agreement and therefore held the applicant liable for the infringement, without, however, including Ahlers AG in that statement of liability. Furthermore, it must be held that, by the present action, the applicant does not dispute either its liability for the infringement in question and therefore does not seek the annulment of Article 1 of the contested decision, or the fact that Ahlers AG was not referred to in that article of the contested decision and was not an addressee of that decision (see paragraphs 17 and 18 above).

39.In the second place, questions arise, first, as to whether the Commission was right, in the contested decision, to take into account as the relevant ‘preceding business year', within the meaning of Article 23(2) of Regulation No 1/2003, the business year which had run between 1 December 2022 and 30 November 2023 and, second, as to whether, in calculating the ceiling of the fine, the Commission should have taken into account only the applicant's turnover during that period or, as it did in the contested decision, also Ahlers AG's turnover.

40.In that regard, it should be noted that, in recital 515 of the contested decision, the Commission observed that, during the infringement period, the applicant, Ahlers AG and another undertaking formed a single economic unit and that, during the business year from 1 December 2022 to 30 November 2023, Ahlers AG had achieved most of the applicant's turnover. The Commission considered that, for the purposes of applying the limit of 10% of turnover, the taking into account of Ahlers AG's turnover until 15 July 2023, the date on which Ahlers AG's business operations were transferred to a third party, was such as to ensure that the fine was proportionate to the applicant's economic situation during the infringement period. In that context, the Commission moreover observed that the lower turnover generated by the undertakings other than Ahlers AG, namely, in essence, the applicant from 16 July 2023, after the transfer of Ahlers AG's business operations to a third party, represented the applicant's economic situation during the remaining months of the business year from 1 December 2022 to 30 November 2023, but did not accurately reflect the applicant's situation over that business year as a whole or during the infringement period. The Commission also observed that if Ahlers AG's entire annual turnover for 2023 had been excluded from the calculation of the fine, that would have led it to set the amount of the fine at an excessively low level and thereby deprive it of any deterrent effect.

41.Moreover, as regards the turnover to be taken into account in calculating the ceiling of the fine imposed on the applicant, it follows from the case-law that the upper limit of the amount of the fine, laid down in Article 23(2) of Regulation No 1/2003, the content of which is set out in paragraph 28 above, seeks to prevent the imposition of fines which it is foreseeable that the undertakings, in view of their size, as determined by their overall turnover, even if approximately and imperfectly, will not be able to pay. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate (see judgment of 26 November 2013, Groupe Gascogne v Commission, C ‑ 58/12 P, EU:C:2013:770, paragraph 48 and the case-law cited).

42.That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, namely the global resources of the infringer (see judgment of 26 November 2013, Groupe Gascogne v Commission, C ‑ 58/12 P, EU:C:2013:770, paragraph 49 and the case-law cited).

43.The taking into consideration of the size and global resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the sanction must not be negligible in the light, particularly, of its financial capacity (see judgment of 26 November 2013, Groupe Gascogne v Commission, C ‑ 58/12 P, EU:C:2013:770, paragraph 50 and the case-law cited). Thus, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is attributed, the taking into account of the turnover of all the companies in respect of which the undertaking concerned has the opportunity to exercise a decisive influence is justified (see judgment of 26 November 2013, Groupe Gascogne v Commission, C ‑ 58/12 P, EU:C:2013:770, paragraph 51 and the case-law cited). Furthermore, as the Commission submits, it is not required, when determining the amount of the fine, to take into account the weak financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C ‑ 189/02 P, C ‑ 202/02 P, C ‑ 205/02 P to C ‑ 208/02 P and C ‑ 213/02 P, EU:C:2005:408, paragraph 327 and the case-law cited).

44.Thus, in order to determine the ‘preceding business year', within the meaning of Article 23(2) of Regulation No 1/2003, the Commission must assess, in each specific case and in the light of both its context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking's real economic situation during the period in which the infringement was committed (see judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C ‑ 702/19 P, EU:C:2020:857, paragraph 102 and the case-law cited).

45.In the present case, as regards, in the first place, the relevant ‘preceding business year', within the meaning of Article 23(2) of Regulation No 1/2003, and its determination as falling between 1 December 2022 and 30 November 2023 (first question referred to in paragraph 39 above), it must be stated that, in footnote 827 to the contested decision, the Commission stated that that reference period corresponded to the business year of Ahlers AG and of the applicant, which, moreover, the applicant does not dispute.

46.Since the contested decision was adopted on 28 November 2024, it must be held that the Commission correctly stated, in recital 511 of the contested decision, that the ‘preceding business year', within the meaning of Article 23(2) of Regulation No 1/2003, ran from 1 December 2022 to 30 November 2023. Moreover, the applicant itself confirms that the Commission's choice to take that year into account as the reference year for the purposes of applying the ceiling of 10% of turnover is not called into question in the present case.

47.As regards, in the second place, the question whether, in calculating the ceiling of the fine, the Commission should have taken into account only the applicant's turnover or, as it did in the contested decision, also that of Ahlers AG (second question referred to in paragraph 39 above), it must be held that the applicant does not dispute the amount of turnover used in the contested decision, but only the fact that, in calculating the ceiling of the fine, the Commission took into account its consolidated turnover, which included that achieved by Ahlers AG between 1 December 2022 and 15 July 2023, and did not rely solely on the applicant's turnover.

48.In addition, it should be borne in mind that, as the Commission stated in recitals 511 and 512 of the contested decision, without being contradicted by the applicant, during the period from 1 December 2022 to 15 July 2023, the date on which Ahlers AG's business operations were transferred to a third party, the turnover generated by Ahlers AG formed part of the applicant's consolidated turnover.

49.In that regard, the EU accounting consolidation rules in force seek to give a true and fair view of the assets, liabilities, financial position and profit or loss of the companies which are members of a group. Article 22(1)(a) to (c) of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ 2013 L 182, p. 19) thus imposes a requirement to prepare financial statements on any parent undertaking which, inter alia, has a majority of the voting rights in a subsidiary undertaking, has the right to appoint or remove a majority of the members of the management or supervisory body of such an undertaking or which has the right to exercise a ‘dominant influence' over such an undertaking (see, by analogy, judgment of 26 November 2013, Groupe Gascogne v Commission, C ‑ 58/12 P, EU:C:2013:770, paragraph 54).

50.It follows that, provided that the Commission has established to a sufficient legal standard that an infringement may be attributed to a company which heads a group, as in the present case, it is entitled, in order to assess the financial capacity of that company, to take into consideration the latter's consolidated accounts inasmuch as they may be regarded as constituting a relevant factor of assessment (judgment of 26 November 2013, Groupe Gascogne v Commission, C ‑ 58/12 P, EU:C:2013:770, paragraph 55).

51.In addition, it must be borne in mind that, according to the case-law, if it were accepted that an undertaking which has infringed EU competition rules could significantly reduce the upper limit which that fine must not in any event exceed by transferring to a third party a sector of its business before the adoption of the decision imposing a fine on it, the effectiveness of the penalties laid down in Regulation No 1/2003 would be seriously undermined (judgment of 22 October 2020, Silver Plastics and Johannes Reifenhäuser v Commission, C ‑ 702/19 P, EU:C:2020:857, paragraph 104).

52.In the present case, since, in accordance with the case-law referred to in paragraph 44 above, the turnover generated during the preceding business year, within the meaning of the second subparagraph of Article 23(2) of Regulation No 1/2003, must reflect the undertaking's real economic situation during the period in which the infringement was committed, the Commission cannot be criticised for having taken into account the consolidated turnover of the applicant as parent company, which therefore included that of its subsidiary, Ahlers AG, between 1 December 2022 and 15 July 2023. The applicant does not dispute that, during the infringement period and up to 15 July 2023, it formed a single economic unit with Ahlers AG, over which it exercised decisive influence.

53.Moreover, it should be noted that, in the circumstances of the present case and as indicated in paragraph 40 above, if the Commission had calculated the amount of the fine solely on the basis of the turnover achieved by the applicant, that amount would have been derisory in the light of the gravity of the infringement, its duration and the unlawful gains generated by that infringement throughout its commission.

54.In that regard and in any event, it must be stated that, as the Commission contends, it could even have used the business year from 1 December 2021 to 30 November 2022 as the reference period for the calculation of the ceiling of the fine imposed on the applicant, which would have been less favourable to the applicant. It was open to the Commission to consider that, as referred to in paragraph 44 above, that business year was the one which best reflected the real economic situation of the undertaking during the period when the infringement was committed, since it was the last full business year during which Ahlers AG and the applicant formed a single economic unit, as had been the case throughout the commission of the infringement.

55.In addition, it is necessary to reject the applicant's arguments, including those put forward at the hearing, that, in the present case, the calculation of the upper limit of the fine imposed on it in the contested decision runs counter to the case-law of the Court of Justice resulting, inter alia, from the judgments of 26 November 2013, Kendrion v Commission (C ‑ 50/12 P, EU:C:2013:771), and of 25 November 2020, Commission v GEA Group (C ‑ 823/18 P, EU:C:2020:955).

56.In paragraphs 53, 57 and 58 of the judgment of 26 November 2013, Kendrion v Commission (C ‑ 50/12 P, EU:C:2013:771), the Court held that, where a parent company and its subsidiary no longer constitute an undertaking within the meaning of Article 101 TFEU 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, the parent company could not claim to benefit from the ceiling applicable to its former subsidiary. The Court thus rejected the argument that it followed from the concept of joint and several liability that a parent company could not be ordered to pay a fine higher than that imposed on its subsidiary.

57.Similarly, in paragraphs 75, 77, 79 and 80 of the judgment of 25 November 2020, Commission v GEA Group (C ‑ 823/18 P, EU:C:2020:955), the Court, relying also on the case-law arising from the judgment of 26 November 2013, Kendrion v Commission (C ‑ 50/12 P, EU:C:2013:771), first of all recalled that where two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking within the meaning of Article 101 TFEU on the date on which a decision imposing a fine on them is adopted, they are entitled to have the ceiling of 10% of turnover applied individually. The Court then endorsed the calculation of that ceiling for each of those two legal persons, carried out separately by the Commission on the basis of the turnover as achieved in the business year preceding the adoption of the decision at issue in that case, from which it followed that the parent company was solely liable for part of the fine imposed.

58.By contrast, in the present case, apart from the Pierre Cardin companies, it was only the parent company, namely the applicant, which was found to have infringed Article 101(1) TFEU and Article 53 of the EEA Agreement (see paragraph 11 above). Only the applicant as parent company, to the exclusion of Ahlers AG as a former subsidiary, was therefore the subject of a fine in the contested decision for infringement of the EU competition rules and had that decision addressed to it (see paragraphs 12 and 14 above).

59.It therefore follows from the foregoing that the applicant cannot claim that the Commission should have taken into account, in order to calculate the turnover achieved between 1 December 2022 and 15 July 2023, only that which it had achieved during that period, without taking account of the turnover achieved by its subsidiary, Ahlers AG.

60.It follows that, in calculating the ceiling of the fine imposed on the applicant, the Commission did not err in law in taking into account the applicant's consolidated turnover for the business year from 1 December 2022 to 30 November 2023, which therefore included, in accordance with the case-law cited in paragraph 44 above, the turnover achieved by Ahlers AG until 15 July 2023, the date on which the latter's business operations were transferred to a third party (see paragraph 6 above). That turnover reflected the applicant's real economic situation during the infringement period.

61.The first, second, third and fourth complaints of the single plea in law must therefore be rejected.

The fifth complaint of the single plea in law, alleging that the fine is disproportionate

62.By its fifth complaint of the single plea in law, the applicant claims that the Commission's approach in the contested decision leads to a fine of a disproportionate amount which cannot be justified by considerations relating to the need to ensure the effectiveness of penalties in competition matters.

63.First, the applicant claims that the Commission set a maximum amount of the fine at approximately EUR 10.4 million during the business year from 1 December 2022 to 30 November 2023, whereas it achieved a turnover of approximately EUR 3.7 million, which would justify a maximum fine of less than EUR 400000. It submits that the maximum amount of the fine set by the Commission exceeds 10% of its turnover and is disproportionate to its size as the undertaking concerned at the time when the contested decision was adopted.

64.Second, such an outcome cannot, in the applicant's submission, be justified by considerations relating to the effectiveness of penalties in relation to anticompetitive practices. The applicant submits that the line of case-law relating to the relevant reference year for the purposes of applying the ceiling of 10% is intended, inter alia, to ensure the effectiveness of the penalties imposed in relation to anticompetitive practices, namely to avoid undertakings concerned being able arbitrarily to reduce the maximum amount of a fine, for example by means of a deliberate restructuring or a sale of assets to third parties. The applicant submits that no such effectiveness concerns arise in the present case, since (i) Ahlers AG's insolvency was a result of various factors external to those undertakings, and to adverse market conditions and (ii) the sale and transfer of Ahlers AG's business operations to a third party are an ordinary consequence of the insolvency proceedings.

65.The Commission contests those arguments.

66.In that regard, it should be noted that, by the fifth complaint, the applicant disputes, in essence, the proportionality of the fine imposed on it, merely claiming in that regard that the ceiling of that fine was wrongly calculated on the basis of its consolidated turnover for the business year from 1 December 2022 to 30 November 2023 as the parent company of Ahlers AG until 15 July 2023, the date on which that company's commercial operations were transferred to a third party.

67.It must be stated that, in those circumstances, the fifth complaint must be rejected as a result of what has already been held in paragraphs 27 to 61 above.

68.The fifth complaint of the single plea in law must therefore be rejected and, accordingly, that plea must be rejected in its entirety.

The alternative heads of claim

69.As regards, moreover, the applicant's second head of claim, put forward in the alternative (see paragraph 15 above), seeking a reduction in the amount of the fine, it should be borne in mind that, according to the case-law, the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission's and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 11 July 2019, Silver Plastics and Johannes Reifenhäuser v Commission, T ‑ 582/15, not published, EU:T:2019:497, paragraph 361 and the case-law cited).

70.Furthermore, the exercise of that unlimited jurisdiction does not amount to a review of the Court's own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (see judgment of 11 July 2019, Silver Plastics and Johannes Reifenhäuser v Commission, T ‑ 582/15, not published, EU:T:2019:497, paragraph 362 and the case-law cited).

71.In the present case, it should be noted that, as regards the amount of the fine, the applicant merely makes, in the alternative, a request for a reduction of that amount in its second head of claim (see paragraph 15 above), without, however, putting forward any specific arguments in support of that request. In those circumstances, none of the complaints raised in support of the main head of claim is well founded and the applicant does not satisfy the requirement, as recalled in the case-law cited in the previous paragraph, to raise pleas in law and to adduce evidence in support of its request.

72.The request for a reduction of the fine, made by the applicant in its second head of claim, must therefore be rejected.

73.The action must, therefore, be dismissed in its entirety.

Costs

74.Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in their entirety in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.Dismisses the action;

2.Orders Westfälisches Textilwerk Adolf Ahlers Stiftung & Co. KG to pay the costs