YKK and Others v European Commission (Advocate Generals opinion)

(Appeal – Cartels – Markets for zip fasteners and other fasteners, and also for attaching machines – Successive liabilities – Legal upper limit of the fine – Regulation (EC) No 1/2003 – Article 23(2) – Concept of ‘undertaking’ – Personal responsibility – Principle of proportionality – Multiplier for deterrence)

The appeal raises important questions of European Union competition law which have not yet been resolved by the Court, namely (a) the determination of the legal upper limit of the fine as provided for in Article 23(2) of Regulation (EC) No 1/2003 ( 4 ) in the event of successive liabilities within the context of the same cartel, and more precisely where an entity participating in the infringement comes under the control of another undertaking during the period of the cartel, and (b) the application of a deterrence multiplier when calculating the fine in such a context.

The background to the dispute and the contested decision are set out as follows in paragraphs 1 to 20 of the judgment under appeal:

‘1 The first applicant, YKK Corp., is a Japanese company. It is a global leader in the market for zip fasteners, but also operates in the “other fasteners” sector.

The second applicant, [YKK Holding], is an undertaking established in the Netherlands. It has 24 subsidiaries, [including] [YKK Stocko]. YKK Holding is a wholly-owned subsidiary of YKK Corp. Its subsidiaries manufacture buttons and fasteners. It is not active in the manufacturing, selling or distributing of any of those products, and is a purely financial holding company.