On 22 January 2013, the European Court of Justice ("ECJ") handed down its judgment in the case of the Commission v Tomkins (Case C-286/11).
In September 2006, Tomkins and its wholly-owned subsidiary Pegler were fined for an infringement of Article 101(1) TFEU. Both companies appealed against the fining decision. In relation to Pegler's appeal (Case T-386/06), the General Court found that the Commission had erred in relation to the duration of Pegler's participation in the cartel. Therefore, the General Court partially annulled the Commission's decision and reduced the fine imposed on Pegler.
Tomkins challenged the duration of Pegler's participation in the infringement before the General Court (Case T-382/06). However, Tomkins' pleas in relation to the duration of the infringement of Pegler were not entirely consistent with the arguments put forward by Pegler. In fact, the appeal by Tomkins appeared more limited in scope than Pegler's appeal. The General Court held in its judgment that Tomkins "(…) was held liable for the infringement only as parent company by virtue of Pegler's participation in the cartel. Therefore, the applicant's liability cannot exceed that of Pegler". As a result of the Commission's imputation of liability Tomkins had the benefit of the partial annulment of the contested decision vis-à-vis Pegler. Furthermore, the General Court ruled that in actions for annulment brought separately by a parent company and by its subsidiary, it is not ruling ultra petita if it takes account of the outcome of the action brought by the subsidiary (Pegler), if the form of order sought in that action has the same object as that in the action brought by the parent company (Tomkins).
Advocate General Mengozzi concluded in his opinion that the General Court erred in law in finding that the forms of order of Pegler and Tomkins in their appeals had the "same object". However, the ECJ did not follow the AG's opinion and held that in a situation in which the liability of the parent company is wholly derived from that of its subsidiary, and in which both of those companies have brought actions seeking a reduction of the fine, the notion of the "same object" does not require that the scope of the applications of those companies must be identical. The Court held that where the parent company and its subsidiary have brought parallel actions having the same object, the General Court was entitled, without ruling ultra petita, to take account of the action brought by Pegler.
