CELEX: 62006TJ0189
Competition
Agreements, decisions and concerted practices
Hydrogen peroxide and sodium perborate
Decision finding an infringement of Article 81 EC
Imputability of the infringement
Obligation to state the reasons on which the decision is based
Equal treatment
Principle of sound administration
Fines
Leniency Notice

Background
The applicant, Arkema France SA (formerly Atofina SA), is a company incorporated under French law which at the material time
manufactured, inter alia, hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’).
During the period between the beginning of the infringement and April 2000, its main shareholder, holding 97.5% of its shares,
was Elf Aquitaine SA. From April 2000 onwards, the applicant was held, as to 96.48% of its shares, by Elf Aquitaine, in which
Total SA had a 99.43% shareholding.
In November 2002, Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and
PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel
cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).
Degussa provided the Commission with material evidence which enabled it to carry out investigations on 25 and 26 March 2003
at the premises of three undertakings, including those of the applicant.
Following those investigations, several undertakings, including EKA Chemicals AB, the applicant and Solvay SA, requested the
application of the Leniency Notice and sent the Commission evidence relating to the cartel in question.
On 26 January 2005, the Commission sent a statement of objections to the applicant and to the other undertakings concerned.
After the hearing of the undertakings concerned, which took place on 28 and 29 June 2005, the Commission adopted Decision
C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against
Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals, Degussa, Edison SpA, FMC Corp., FMC Foret SA, Kemira Oyj, L’Air
liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, Solvay SA, Solvay Solexis SpA, Total, Elf Aquitaine and the applicant (Case
COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the
Official Journal of the European Union
of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.

The contested decision
The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement
of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product
PBS (recital 2 of the contested decision).
The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company
information, limiting and controlling production as well as potential and actual production capacities, allocating market
shares and customers and fixing and monitoring adherence to target prices.
The applicant, Total and Elf Aquitaine were held ‘jointly and severally’ liable for the infringement (recital 441 of the contested
decision).
To calculate the amounts of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting
fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).
The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital
452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).
As part of a differentiating approach, the applicant, Total and Elf Aquitaine were placed in the third category, in respect
of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision).
In order to ensure a sufficient deterrent effect, a multiplier of 3 was applied to that starting amount, in view of the high
turnover of the ultimate parent companies of the group, Elf Aquitaine and Total (recital 463 of the contested decision).
Since, according to the Commission, the applicant participated in the infringement from 12 May 1995 until 31 December 2000,
namely a period of five years and seven months, the amount of its fine was increased by 55% on account of the duration of
the infringement (recital 467 of the contested decision). That increase was not applied to the amount of the fine imputed
to Total, which was found to be liable for the infringement in question during the period 30 April to 31 December 2000 (recital
468 of the contested decision).
The Commission made a finding of one aggravating circumstance against the applicant, in view of the fact of its repetition
of the infringements found in Decision 85/74/EEC of 23 November 1984 relating to a proceeding under Article 85 of the EEC
Treaty (Case IV/30.907 – Peroxygen products) (OJ 1985 L 35, p. 1) and Decision 94/599/EC of 27 July 1994 relating to a proceeding
pursuant to Article 85 of the EC Treaty (Case IV/31.865 – PVC) (OJ 1994 L 239, p. 14). Consequently, it increased the basic
amount of the fine imputed to the applicant by 50% of the basic amount that would have been applied to it had the ultimate
parent companies of the group not been addressees of the contested decision (recitals 469 to 471 of and footnote 90 to the
contested decision).
The Commission found that the applicant was the second undertaking to have satisfied the requirements of point 21 of the Leniency
Notice and on that basis granted it a reduction in the fine of 30%, which it applied to the total amount of the fine imposed
on the applicant, Total and Elf Aquitaine (recitals 509 to 514 and 529 of the contested decision).
Article 1(o) to (q) of the contested decision state that the three companies infringed Article 81(1) EC and Article 53 of
the EEA Agreement by participating in the infringement in question, from 30 April to 31 December 2000 in the case of Total
and from 12 May 1995 to 31 December 2000 in the case of the applicant and Elf Aquitaine.
Under Article 2(i) of the contested decision, a fine of EUR 78.663 million was imposed on the applicant, in respect of which
Total and Elf Aquitaine were held ‘jointly and severally’ liable for EUR 42 million and EUR 65.1 million respectively.

Procedure and forms of order sought
By application lodged at the Registry of the Court on 18 July 2006, the applicant brought the present action.
The composition of the Chambers of the Court having been altered, the Judge‑Rapporteur was assigned to the Sixth Chamber,
and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).
As two members of the Chamber (Extended Composition) were unable to sit, the President of the Court designated two other judges
to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure of the Court.
Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral
argument and replied to the questions put by the Court at the hearing which took place on 3 September 2010.
The applicant claims that the Court should:
–        annul the contested decision in so far as it concerns the applicant;
–        in the alternative, annul or reduce the amount of the fine imposed upon it;
–        order the Commission to pay the costs.
The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.

Law
In support of its action, the applicant puts forward, in substance, six pleas in law, alleging, first, breach of the rules
on holding a parent company liable for infringements committed by a subsidiary and the principle of equal treatment, second,
errors of fact in relation to the imputation of the infringement to Total and Elf Aquitaine, third, breach of the duty to
state reasons and the principle of sound administration, fourth, errors of law and fact in relation to the increase in the
amount of the fine in respect of deterrent effect, fifth, errors of law and fact in relation to the increase in the amount
of the fine on account of repeated infringement, and, sixth, errors of law and fact in relation to the reduction in the amount
of the fine in application of the Leniency Notice.

The first plea in law, alleging breach of the rules on holding a parent company liable for infringements committed by a subsidiary
and the principle of equal treatment
Preliminary observations
It must be borne in mind that the competition law of the European Union covers the activities of undertakings and that the
concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in
which it is financed (see Case C‑97/08 P
Akzo Nobel and Others
v
Commission
[2009] ECR I‑8237, paragraph 54 and the case-law cited).
The Court of Justice has also stated that the concept of an undertaking, in that same context, must be understood as designating
an economic unit even if in law that economic unit consists of several persons, natural or legal (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 55 and the case-law cited).
When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility,
to that entity to answer for that infringement (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 56 and the case-law cited).
The infringement of the competition law of the European Union must be imputed unequivocally to a legal person on whom fines
may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of
objections indicate in which capacity a legal person is called on to answer the allegations (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 57 and the case-law cited).
It is clear from settled case-law that the conduct of a subsidiary may be imputed to its parent company in particular where,
although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market,
but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular
to the economic, organisational and legal links between those two legal entities (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 58 and the case‑law cited).
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 abovementioned purposes. Thus, the fact that a parent company and its subsidiary constitute
a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the
parent company, without having to establish the personal involvement of the latter in the infringement. (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 59).
The Court of Justice has also held that, in the specific case where a parent company has a 100% shareholding in a subsidiary
which has infringed the competition rules of the European Union, first, the parent company can exercise a decisive influence
over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise
a decisive influence over the conduct of its subsidiary (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 60 and the case-law cited).
The Court of Justice thus went on to state that, in those circumstances, it was sufficient for the Commission to prove that
the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises a decisive influence
over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and
severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of
rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 61 and the case-law cited).
In the present case, in recitals 370 to 379 of the contested decision, the Commission summarised, with reference to the case-law
of the Court of Justice and the General Court, the principles it intended to apply in identifying the addressees of the contested
decision.
The Commission pointed out that a parent company could be held liable for the unlawful conduct of a subsidiary in so far as
the subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects,
the instructions given to it by the parent company. The Commission stated that it can generally assume that a wholly‑owned
subsidiary essentially follows the instructions given by its parent company and that the latter can rebut the presumption
by adducing evidence to the contrary (recital 374 of the contested decision).
In so far as concerns the liability of Elf Aquitaine, the Commission pointed out that that company had had a 98% shareholding
in the applicant and had always appointed the members of its board of directors. Thus, the Commission presumed that Elf Aquitaine
exerted a decisive influence over the conduct of its subsidiary (recital 427 of the contested decision).
As regards Total, the Commission stated that that company had acquired 99.43% of the share capital of Elf Aquitaine in April
2000 and controlled directly or indirectly the capital of the company within the group that played a direct role in the unlawful
conduct and that, given those facts, it had presumed that Total exercised a decisive influence over the conduct of its subsidiaries
Elf Aquitaine and the applicant (recitals 428 and 429 of the contested decision).
In recitals 430 to 432 of the contested decision, the Commission summarised the arguments raised by the applicant and by Total
and Elf Aquitaine against the imputation of the infringement to the latter companies and went on to examine them in recitals
433 to 440 of the decision.
In recital 441 of the contested decision, the Commission confirmed its finding that the applicant, Total and Elf Aquitaine
formed a single undertaking and held them liable for the infringement in question, with the proviso that Total was liable
for the infringement only from the date on which it acquired control over Elf Aquitaine’s capital, that is to say, from 30 April
to 31 December 2000.
The applicant disputes that finding, raising, in substance, two complaints concerning, first, breach of the rules on imputation
and, second, breach of the principle of equal treatment.
The alleged breach of the rules on holding a parent company liable for infringements committed by its subsidiary
The applicant stated at the hearing that it did not dispute the finding of the infringement at issue, but simply the imputation
of the infringement to Total and Elf Aquitaine, inasmuch as that imputation had consequences for the amount of the fine.
It maintains, in substance, that the fact that the parent company holds the entire capital of its subsidiary or, a fortiori,
the fact that it holds almost the entire capital of its subsidiary does not, by itself, support the automatic conclusion that
the parent company does in fact exercise a decisive influence over its subsidiary or permit liability to be attributed to
the parent company for an infringement committed by its subsidiary. The Commission erred in law by holding the applicant’s
parent companies liable for the infringement solely on the basis of the presumption arising from the fact that they hold almost
all of its share capital.
It must be observed in this connection that the method which the Commission followed in order to impute the infringement in
question to Total and Elf Aquitaine, in so far as it was based upon that presumption, is consistent with the case-law cited
in paragraphs 27 to 34 above.
First, contrary to what the applicant appears to suggest, the imputation was not based solely upon the ownership structure
of the capital, but also upon a finding that the presumption of the exercise of a decisive influence was not rebutted (see,
in particular, recitals 437 and 441 of the contested decision).
Second, it is clear from the case-law (see, in particular, paragraphs 33 and 34 above) that the ownership structure of the
capital of a subsidiary does provide sufficient grounds for such a presumption and that the Commission is not required to
adduce further evidence in relation to the parent company’s actual exercise of a decisive influence, as the applicant demanded.
That conclusion is not called into question by the fact that additional evidence of that kind was put forward in the case
which gave rise to the judgment of the General Court in Case T‑112/05
Akzo Nobel and Others
v
Commission
[2007] ECR II‑5049, paragraphs 13 and 54. Indeed, it is unambiguously clear both from the judgment of 12 December 2007 in
Akzo Nobel and Others
v
Commission
, paragraphs 61 and 62, and the judgment of 10 September 2009 in
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraphs 61 and 62, that the application of the presumption in question is not conditional upon the
existence of such evidence. Similarly, the Commission is not required to prove, for this purpose, that the parent company
was aware, at the material time, of the infringing conduct of its subsidiary.
It should also be observed that the abovementioned case-law specifically concerns the particular case where a parent company
owns 100% of the capital of its subsidiary (
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraph 60), whereas, in the present case, Total and Elf Aquitaine did not own all the applicant’s
capital (see paragraph 2 above).
Nevertheless, it must be emphasised that the applicant has put forward no argument based on the fact that Total and Elf Aquitaine
did not have 100% shareholdings. On the contrary, it stated during the hearing that it was not arguing that this factor ‘fundamentally
alter[ed] matters in terms of the legal control’ of the subsidiary, thus confirming that it did not oppose the application
of the same rule of evidence both to situations where there is total control over the capital and to situations where there
is almost total control over the capital.
The present complaint must therefore be dismissed.
The alleged breach of the principle of equal treatment
The applicant maintains that, by relying solely on the presumption in question with regard to its parent companies, the Commission
practised ‘unfair discrimination’ in the taking of evidence. The applicant was the only subsidiary in respect of which the
Commission did no more than rely upon the presumption. In respect of the other undertakings concerned, it adduced further
material on the exercise by the parent companies of a decisive influence.
It must be observed in this connection that it is clear from recitals 370 to 379 of the contested decision that the Commission
applied the same rule, according to which control over all or almost all of the share capital of a subsidiary provides sufficient
grounds for a rebuttable presumption which makes it possible to impute liability to the parent company, to all the addressees
of the decision. The presumption in question was in fact applied both to the Total group and to the other groups of companies
concerned by the contested decision.
The fact that, in the case of certain addressees of the contested decision, namely Akzo Nobel, FMC, L’Air liquide, SNIA and
Edison, the Commission relied, in addition to the presumption, upon certain other indications of the exercise by the parent
companies of a decisive influence does not mean that the principles applied were not the same for all addressees.
Indeed, as regards Akzo Nobel, recital 384 of the contested decision clearly states that ‘due to the 100% shareholding by
Akzo the Commission considers that Akzo has exercised a decisive influence on EKA [Chemicals] … and no element was put forward
to rebut this presumption’. That conclusion is not contradicted by the fact that, in recital 385 of the decision, the Commission
referred to certain additional indications which tended to confirm it.
As regards FMC, the Commission stated that it based its conclusion as to its liability ‘on the fact that FMC Foret [was an]
(indirectly) wholly‑owned subsidiary of FMC’ (recital 390 of the contested decision). That conclusion is without prejudice
to the fact that, in recital 391 of the decision, the Commission referred to an additional indication of the exercise by FMC
of a decisive influence over its subsidiary.
As regards Air liquide, the Commission stated in recital 403 of the contested decision that, ‘given the 100% shareholding
that existed at the time of the infringement between Chemoxal and Air Liquide as well as the power that Air Liquide had to
appoint the Directors at Chemoxal, [it had] presumed the exercise of decisive influence by Air Liquide over the conduct of
its subsidiary Chemoxal’. The Commission qualified that conclusion by stating, in recital 405 of the decision, that ‘the 100%
ownership [led] to a presumption which [could] be rebutted by showing that … the subsidiary benefit[ed] from … autonomy’.
As regards SNIA, recital 411 of the contested decision states that its liability derived from the fact that it merged with
the company which was the 100% parent company of the entity that was directly involved in the infringement, a situation thus
not comparable to that of the applicant.
Lastly, as regards Edison, the Commission stated in recital 418 of the contested decision that ‘it was in absence of a rebuttal
that the 100% shareholding was considered [by the case-law] a sufficient element’. Furthermore, in recitals 419 to 421 of
the decision, the Commission referred to certain additional elements which it held to contradict Edison’s allegation of the
independence of its subsidiary.
It is thus clear from the abovementioned recitals of the contested decision that the Commission held, with regard to all the
addressees of the decision, that control over all or almost all of the share capital of the subsidiary, in the absence of
argument refuting the resulting presumption, provided sufficient grounds to impute liability to the parent company. Additional
indications of the exercise by certain parent companies of a decisive influence over their subsidiaries were set out, where
available, either to reinforce the conclusion that had already been validly drawn from the fact of control over the whole
of the subsidiary’s share capital or to answer the arguments developed by the undertakings concerned.
Furthermore, in so far as the group to which the applicant belonged is concerned, in addition to the links of a capital nature,
the Commission also mentioned the fact that the members of the applicant’s board had been appointed by Elf Aquitaine (recital
427 of the contested decision), albeit without making the imputation of the unlawful conduct of wholly‑owned subsidiaries
or almost wholly‑owned subsidiaries to their parent company dependent upon the existence of additional indications.
Consequently, the present complaint must be rejected as unfounded and, accordingly, the first plea must be rejected in its
entirety.

The second plea in law, alleging errors of fact in relation to the imputation of the infringement to Total and Elf Aquitaine
The applicant maintains that, even if it were to be admitted that the method of relying upon the presumption in question were
valid, the Commission had no grounds, in fact, to impute the infringement to Total and Elf Aquitaine.
First of all, it maintains that it had called the imputation into question by demonstrating that the managers of Elf Aquitaine
and Total had had no involvement whatsoever in the unlawful practices in question.
It is appropriate to point out in this connection that the Commission imputed the infringement in question to Total and Elf
Aquitaine on the ground that, at the material time, they formed a single undertaking with the applicant. In reaching that
conclusion, the Commission relied on the presumption arising from the fact that they controlled almost all of the applicant’s
share capital and held that that presumption had not been rebutted during the administrative procedure.
Since that conclusion was thus not founded upon the involvement of the applicant’s parent companies in the unlawful conduct,
the applicant’s argument based upon the absence of any direct involvement on the part of the managers of those companies and
upon their ignorance of the facts alleged to constitute the infringement cannot call it into question.
Second, the applicant maintains that it rebutted the presumption in question by showing, during the administrative procedure,
that it enjoyed autonomy in determining its commercial policy.
According to the case-law cited in paragraph 34 above, in order to rebut the presumption at issue, it is necessary for the
parent company to adduce sufficient evidence to demonstrate that its subsidiary acts independently on the market.
In this connection, account must be taken of all the relevant factors relating to the economic, organisational and legal links
which tie the subsidiary to the parent company, which may vary from case to case (
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraphs 61 and 74).
It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy
stricto sensu
, such as the distribution or pricing strategy. In particular, the presumption in question cannot be rebutted merely by showing
that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see,
to that effect,
Akzo Nobel and Others
v
Commission
, paragraph 27 above, paragraphs 65 and 67).
In the present case, it is clear from the file that, in its reply to the statement of objections, the applicant argued, in
substance, that its commercial policy had never been defined by its parent companies, in particular, in view of the group’s
structure and the fact that the activities concerned by the infringement represented only a small proportion of the group’s
total turnover.
It must immediately be pointed out that that argument rests purely upon mere assertions, the applicant having failed to adduce
any concrete evidence in support of its argument that it acted independently on the market. In particular, the relevant part
of its reply to the statement of objections makes no reference to any document in support of the assertions which it contains.
The arguments which the applicant put forward in its reply to the statement of objections were thus manifestly incapable of
constituting a body of evidence sufficient to rebut the presumption in question.
It should also be pointed out that, in addition to their not being supported by appropriate evidence, the arguments in question
were not such as to demonstrate the applicant’s independence.
First of all, as regards the applicant’s assertion that Total and Elf Aquitaine were no more than non-operating holding companies,
it must be observed that that fact alone is insufficient to disprove that they exercised a decisive influence on the applicant,
in particular by coordinating financial investments within the group. Indeed, in the context of a group of companies, a holding
company is a company which seeks to regroup shareholdings in various companies and whose function is to ensure that they are
run as one (see, to that effect, Case T‑69/04
Schunk and Schunk Kohlenstoff-Technik
v
Commission
[2008] ECR II‑2567, paragraph 63).
The applicant itself confirms that Elf Aquitaine intervened in the most important decisions that might have an impact at group
level and that it decided upon a very general policy in relation to the compatibility of the activities of the various branches,
to changes in activities and to the geographical location of its activities worldwide. These assertions tend to confirm that
Elf Aquitaine’s function was to ensure unified coordination and management, such as to influence the applicant’s conduct on
the market.
Second, as regards the applicant’s argument that Total and Elf Aquitaine never intervened in the definition of commercial
policy relating to HP and PBS, it must be observed that the division of tasks is a normal phenomenon within a group of companies
and cannot rebut the presumption that the applicant, Total and Elf Aquitaine constituted a single undertaking for the purposes
of Article 81 EC.
Nor can any conclusions be drawn from the fact that the parent companies never had any customers in common with the applicant,
that they did not operate on the markets on which the applicant was present, or on any related markets, and that the activity
relating to the products in question represented only a very small share of the group’s total turnover.
Third, as regards the applicant’s argument that there was no information and reporting system between it and its parent companies,
except for the reporting of accounting and financial regulation information required by law, the Court observes that, given
that the independence of the subsidiary is not to be assessed solely by reference to the operational management aspects of
the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information
policy on the market concerned is not sufficient to show that it was independent.
Fourth, as regards the point which the applicant raised for the first time before the Court, namely the fact that it became
a separate company, from a capital point of view, from the Total group on 18 May 2006, it should be pointed out that that
separation, which post-dates the infringement and the adoption of the contested decision, cannot be regarded as a relevant
indicator of the links between the companies in question during the period of the infringement.
Fifth, as regards the applicant’s argument that the position adopted by the Commission in the contested decision is different
from that which it adopted in Decision C(2003) 4570 of 10 December 2003 relating to a proceeding under Article 81 [EC] and
Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides), it must be observed that it is clear from recitals
373 to 391 of that decision that the Commission did not analyse the question of the liability of the applicant’s parent company
at all and, in particular, expressed no position on the question of its independence from its parent company.
It must be borne in mind in this connection that the Commission is not required always to check whether the unlawful conduct
of a subsidiary may be imputed to its parent company (see, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02
Raiffeisen Zentralbank Österreich and Others
v
Commission
[2006] ECR II‑5169, paragraphs 330 and 331). Consequently, the mere fact that the Commission did not consider the possibility
of addressing Decision C(2003) 4570 to the applicant’s parent company does not prevent it from doing so in the present case,
in accordance with the principles established by the case-law on imputability.
In light of the foregoing, it must be held that the Commission was right to conclude that the evidence adduced by the applicant,
even taken as a whole, was insufficient to rebut the presumption in question.
In so far as concerns the document which the applicant produced as an annex to its application, entitled ‘Internal powers
and spending commitments’, by which it sought to support its argument that Total restricted itself to approving the subsidiary’s
most important investments, it must be observed that the applicant did not refer to that document in its reply to the statement
of objections and consequently it cannot be relied upon in order to dispute the Commission’s assessment in the contested decision.
In any event, it must be pointed out that the document in question does not constitute evidence capable of establishing the
applicant’s independence in that, first, as is clear from its reply to the request for information addressed to it during
the administrative procedure, it contains the rules governing the right to commit the group that applied ‘from 2001 onwards’
and not, therefore, relating to the period of the infringement in question and, second, the fact that the intervention of
the ultimate parent company of the group in its subsidiary’s commercial policy was restricted to investments over a certain
threshold is not sufficient to establish the subsidiary’s independence.
In light of those considerations, it must be held that the Commission was right to conclude that the evidence adduced by the
applicant in response to the statement of objections was insufficient to rebut the presumption in question.
Accordingly, the second plea must be rejected.

The third plea in law, alleging breach of the duty to state reasons and the principle of sound administration
The applicant argues that, by failing to answer the arguments which it put forward to demonstrate its independence, the Commission
breached the duty to state reasons and the principle of sound administration.
First of all, as regards the duty to state reasons, it maintains that the Commission failed to express a position on the arguments
summarised in recital 431 of the contested decision, based on the fact that Elf Aquitaine’s appointment of the members of
its board did not in itself prove the exercise of effective control and that the applicant enjoyed complete autonomy in its
commercial policy. Moreover, the Commission failed to set out certain arguments put forward by the applicant relating to the
fact that the managers of Total and Elf Aquitaine had never been involved in the practices referred to in the contested decision
and that the control exercised by those parent companies was restricted to approving the most important investments.
It has been consistently held that the statement of reasons required by Article 253 EC must be appropriate to the measure
at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the
measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable
the competent Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts
and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed
with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see
Case C‑367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63 and the case-law cited).
Where, as in the present case, a decision taken in application of Article 81 EC relates to several addressees and raises a
problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each
of its addressees, in particular those of them who, according to the decision, must bear the liability for the infringement.
Thus, in regard to a parent company held jointly and severally liable for the infringement, such a decision must contain a
detailed statement of reasons for attributing the infringement to that company (see, to that effect, Case T‑327/94
SCA Holding
v
Commission
[1998] ECR II‑1373, paragraphs 78 to 80).
It follows that, where, as in the present case, the Commission relies upon the presumption that a parent company exercises
a decisive influence over the conduct of its subsidiary, and the companies concerned put forward arguments during the administrative
procedure to rebut that presumption, the decision must contain a sufficient statement of the reasons to justify the Commission’s
opinion that those arguments were not such as to rebut the presumption.
It must be observed in this connection that it is clear from recitals 430 to 441 of the contested decision that the Commission
gave a reasoned response to the arguments put forward by the applicant and its parent companies during the administrative
procedure.
Indeed, after describing, in recitals 430 to 432 of the contested decision, the arguments put forward by the undertakings
concerned in their replies to the statement of objections, the Commission replied to the arguments raised by them relating,
essentially, to the unlawful nature of the imputation of the conduct on the basis of the presumption, in light, in particular,
of the principle of the independence of legal entities, the principle that penalties must be specific to the offender and
the offence, the principle of personal liability, the presumption of innocence and the principle of the equality of arms.
In addition, in recitals 433 to 441 of the contested decision, the Commission held that the presumption arising from the fact
that Elf Aquitaine and Total held almost all of the applicant’s share capital had not been rebutted and that the conclusion
that those companies were liable for the infringement had to be maintained on the basis of that presumption.
The Court considers that, by those reasons, the Commission also replied to the essential points of the applicant’s arguments.
Moreover, since the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned
(Case T‑349/03
Corsica Ferries France
v
Commission
[2005] ECR II‑2197, paragraph 64; see also, to that effect,
Commission
v
Sytraval and Brink’s France
, paragraph 89 above, paragraph 64), it cannot be criticised for not replying specifically to each argument relied on by the
applicant. Indeed, an all-encompassing answer such as that given in the present case may, depending on the circumstances of
the case, be sufficient for the undertaking to be able properly to defend its rights and for the Court to exercise its power
of review.
The succinct nature of the reasoning in the contested decision on this point is, moreover, justified by the fact that the
arguments upon which the applicant relied consisted in mere assertions and were not supported by concrete evidence of its
alleged independence on the market.
In this connection, as regards, more specifically, the applicant’s argument that the Commission failed to set out in recitals
430 to 432 of the contested decision its allegation that the control exercised by the parent companies was restricted to approving
the most important investments, it must be observed that that allegation is contained within the allegation that ‘[the applicant]
enjoy[ed] complete autonomy in its commercial policy and conduct on the market’, which is set out in the fourth indent of
recital 431 of the contested decision and which was rejected as insufficient in the framework of the all-encompassing answer
given to the counter-evidence in question in recital 437 of the decision, which states that ‘the presumption of decisive influence
... has not been rebutted’.
Moreover, it must be borne in mind that the succinct nature of that answer is justified by the fact that the allegations in
question were not supported by any concrete evidence.
As regards the argument that the managers of Total and Elf Aquitaine had never been involved in the unlawful practices, it
is clear from paragraphs 64 and 65 above that the Commission made no reference to this factor in holding the applicant’s parent
companies liable for the infringement in question, and thus its failure expressly to state its position on this argument cannot
entail any breach of the duty to state reasons.
As regards the fact that the Commission did not explicitly answer the argument, summarised in recital 431 of the contested
decision, that the appointment by Elf Aquitaine of the members of the applicant’s board did not prove the exercise of effective
control, it must be pointed out that it is clear from recitals 427 to 429 of the decision that that factor was mentioned,
along with the presumption in question, but did not of itself lead to the imputation of the applicant’s infringement to its
parent companies. Consequently, the absence of any explicit answer to the argument in question did not prevent the applicant
from ascertaining the reasons for the imputation, or from disputing it before the Court.
Lastly, as regards the applicant’s argument that the standard of the duty to state reasons in this case is higher since the
contested decision is based upon an innovative approach, it must be observed that the presumption of the exercise by a parent
company of a decisive influence over its subsidiary, based purely upon their links of a capital nature, has already been applied
by the Commission, in particular, in Decision C(2004) 4876 of 19 January 2005 relating to a proceeding under Article 81 [EC]
and Article 53 of the EEA Agreement against Akzo Nobel, Akzo Nobel Nederland BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional
Chemicals BV, Akzo Nobel Base Chemicals AB, EKA Chemicals, Akzo Nobel AB, Atofina, Elf Aquitaine, Hoechst AG, Clariant GmbH,
Clariant AG (Case E‑1/37.773 – MCAA), in which it imputed the infringement committed by the applicant to Elf Aquitaine. The
applicant cannot therefore maintain that the Commission has adopted a radically new position with regard to its parent companies
in this case.
In any event, the Commission did not restrict itself in the contested decision to giving a summary statement of reasons. It
set out explicitly, with references to the case-law of the Court of Justice and the General Court, both the principles which
it intended to apply in order to identify the addressees thereof (recitals 370 to 379 of the contested decision) and the application
of those principles to the Total group (recitals 427 to 441 of the decision).
Consequently, the complaint alleging breach of the duty to state reasons is unfounded.
Second, the applicant maintains that the Commission breached the principle of sound administration by relying upon a mere
presumption of the exercise of a decisive influence and failing to examine carefully the evidence adduced to rebut that presumption,
in particular, the evidence relating to the lack of relevance of Elf Aquitaine’s appointment of the members of the applicant’s
board and to the applicant’s independence in deciding its commercial policy.
As is clear from paragraphs 98 to 101 above, the succinct nature of the answer given to those points in the contested decision
is justified, in so far as concerns the allegation relating to the applicant’s independence, by the fact that that allegation
was not supported by any concrete evidence, and, in so far as concerns the argument disputing the relevance of the appointment
of the members of the board, by the superfluous nature of that aspect, which did not of itself lead to the imputation in question.
The succinct nature of that answer therefore does not allow the conclusion to be drawn that the duty to examine carefully
and impartially the relevant matters arising in the administrative procedure was breached.
Moreover, it is evident from a reading of recitals 434 to 441 of the contested decision that the Commission examined the arguments
of the applicant and its parent companies, summarised in recital 431 of the decision, by which they sought to dispute the
imputation of the infringement in question. An analysis of the reply to the statement of objections reveals no other relevant
factors that the Commission might have overlooked.
It follows that the present complaint alleging breach of the principle of sound administration is unfounded.
In light of the foregoing, the third plea must be rejected.

The fourth plea in law, alleging errors of law and fact in relation to the increase in the amount of the fine in respect of
deterrent effect
First, the applicant maintains that the Commission erred in law by applying the increase in question on the basis of the turnover
achieved by Elf Aquitaine and Total, in that they ought not to have been held liable for the infringement.
It must be observed that this complaint rests entirely upon the premiss that the infringement in question ought not to have
been imputed to the applicant’s parent companies, which was rejected in the context of the Court’s examination of the first
and second pleas. It must therefore immediately be rejected.
Second, the applicant maintains that the Commission breached the principles of proportionality and equal treatment by taking
account, in applying the increase in question, of the group’s size and turnover, without having proved that the managers of
the parent companies had taken part in the infringement or that the group’s resources had been used by the subsidiary.
It must be borne in mind that, according to settled case-law, in order to determine the amount of the fine, the Commission
must ensure that it has the necessary deterrent effect and may, in this respect, take into consideration, inter alia, the
size and economic power of the undertaking in question (Joined Cases 100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] ECR 1825, paragraphs 106 and 120, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I‑5425, paragraph 243).
It must be recalled that the need to ensure that the fine has a sufficient deterrent effect requires that the amount of the
fine be adjusted so that the fine is not rendered negligible, or on the other hand excessive, notably by reference to the
financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to
ensure that the fine is effective and, second, respect for the principle of proportionality (Case T‑279/02
Degussa
v
Commission
[2006] ECR II‑897, paragraph 283, and Case T‑410/03
Hoechst
v
Commission
[2008] ECR II‑881, paragraph 379).
In particular, where the undertaking concerned would find it easier to find the funds necessary to pay its fine, that may
justify the application of a multiplier, in order to ensure that the fine is sufficiently deterrent (see, to that effect,
Case C‑289/04 P
Showa Denko
v
Commission
[2006] ECR I‑5859, paragraph 18;
Degussa
v
Commission
, paragraph 114 above, paragraph 284; and
Hoechst
v
Commission
, paragraph 114 above, paragraph 379).
Thus, in the present case, the Commission was legally entitled to increase the starting amount of the fine in question, given
the overall size of the undertaking comprising the applicant, Total and Elf Aquitaine.
Moreover, as regards the consideration, justified, in particular, by the fact that the undertaking concerned might find it
easier to find the funds necessary to pay its fine, the Commission was not, contrary to the applicant’s submission, required
to establish any link between use of the undertaking’s resources and the commission of the infringement, but could legally
take into account the overall size of the undertaking.
Since the increase in question may legally be based upon the size of the undertaking in question and the question of which
resources are used in the commission of the infringement is irrelevant, the increase in question cannot constitute a breach
of the principle of equal treatment merely because no distinction was made in its application between the infringing undertakings
by reference to that criterion.
As regards the applicant’s claim that the increase in question is disproportionate, first of all, the Court would point out
that the infringement being punished corresponds to conduct which the Commission has found to be unlawful time and time again
since it first became active in the field, which fully justifies the setting of the fine at a sufficiently deterrent level
(see, to that effect, Joined Cases T‑101/05 and T‑111/05
BASF and UCB
v
Commission
[2007] ECR II‑4949, paragraphs 46 and 47).
Next, the Commission has a margin of discretion when setting the amount of fines, in order that it may channel the conduct
of undertakings towards compliance with the competition rules. In this respect, in view of the size of the undertaking in
question, evidenced by the particularly high worldwide turnover of Total and Elf Aquitaine in the last financial year preceding
the adoption of the contested decision (recital 463 of the decision), the increase in question, arrived at by applying a multiplier
of 3, cannot be regarded as disproportionate in light of the purpose of deterrence.
Consequently, the fourth plea must be rejected.

The fifth plea in law, alleging errors of law and fact in relation to the increase in the amount of the fine on account of
repeated infringement
The present plea falls into two limbs.
The first limb, alleging breach of the principle that penalties must have a proper legal basis and the principle of legal
certainty
In its application, the applicant argues that, by having regard to earlier adverse findings, relating to facts that occurred
over 20 years prior to the adoption of the contested decision, the Commission has infringed the principle that penalties must
have a proper legal basis and the principle of legal certainty.
At the hearing, the applicant stated that, having learned of the Court of Justice’s judgments in Case C‑3/06 P
Groupe Danone
v
Commission
[2007] ECR I‑1331 and Case C‑413/08 P
Lafarge
v
Commission
[2010] ECR I‑5361, it was withdrawing the present limb of the fifth plea, although it was pursuing the argument which it
developed in the context of the second limb of the plea, alleging breach of the principle
non bis in idem
and the principle of proportionality, as was noted in the minutes of the hearing.
It is therefore no longer necessary for the Court to examine the first limb of the plea.
The second limb, alleging breach of the principle
non bis in idem
and the principle of proportionality
First of all, the applicant argues that the Commission has breached the principle
non bis in idem
, in that the same previous adverse findings as those relied upon in the contested decision had already been taken into account
in two earlier decisions, Decisions C (2003) 4570 and C (2004) 4876.
It must be borne in mind that the application of the principle
non bis in idem
is subject to the threefold condition of identity of the facts, unity of the offender and unity of the legal interest protected.
Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct
designed to protect the same legal asset (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P
Aalborg Portland and Others
v
Commission
[2004] ECR I‑123, paragraph 338).
First, it must be observed that, since, in taking previous infringements into consideration in the contested decision the
Commission did not seek to punish those infringements again, but only to penalise the applicant for its participation in the
cartel referred to in the contested decision, by taking account of its conduct constituting repeated infringement, the fact
that the Commission had already taken the same infringements into consideration in two earlier decisions does not amount to
a breach of the principle
non bis in idem.
Second, and in any event, it must be observed that the cumulative conditions of the applicability of the principle
non bis in idem
set out in paragraph 127 above are not satisfied, since the condition of identity of the facts is absent. In the contested
decision, the Commission penalised the applicant on account of its participation in the cartel, in respect of which it had
not previously initiated proceedings or adopted penalties, which the applicant, moreover, does not claim to be the case.
The Commission therefore did not breach the principle
non bis in idem
by taking Decisions 85/74 and 94/599 into account in finding that the applicant’s conduct constituted repeated infringement
in the contested decision, even though it had already taken that same aggravating circumstance into account in Decisions C (2003) 4570
and C (2004) 4876.
Accordingly, the applicant’s complaint must be rejected as unfounded.
Second, in so far as the applicant maintains that the Commission breached the principle of proportionality by applying, in
the contested decision, an increase of the basic amount of the fine on account of repeated infringement, first, the applicant’s
argument that, because the same aggravating circumstance was taken into account in Decisions C (2003) 4570 and C (2004) 4876,
the objective of deterrence was already satisfied, must be rejected as unfounded.
Indeed, the fact that the Commission had already taken account of Decisions 85/74 and 94/599 to reach a finding of repeated
infringement in the context of other infringements did not prevent it from taking those two decisions into account in the
contested decision for the purpose of assessing the severity of the infringement in question, in order to deter the applicant
from repeating its unlawful conduct in the future.
Each of those earlier infringements constituted, independently of the other, a repetition of the conduct infringing the competition
rules found in Decisions 85/74 and 94/599, which showed a tendency on the applicant’s part not to draw the appropriate conclusions
from those adverse findings (see, to that effect,
Groupe Danone
v
Commission
, paragraph 124 above, paragraph 40).
Second, the applicant’s argument that the Commission breached the principle of proportionality in imposing on it a new increase
to reflect repeated infringement when that circumstance had already been taken into account in Decisions C (2003) 4570 and
C (2004) 4876 and when, consequently, it had been given no opportunity to adjust its conduct, must be rejected as ineffective.
Indeed, since the Commission did not rely on those decisions in order to establish that the applicant’s conduct consisted
in repeated infringement, the fact that they were adopted after the infringement punished in the contested decision had ended
is irrelevant in the present case.
In light of those considerations, the applicant’s complaint that the Commission breached the principle of proportionality
and, consequently, the second limb and the present plea in its entirety also must be rejected.

The sixth plea in law, alleging errors of law and fact in relation to the reduction in the amount of the fine in application
of the Leniency Notice
Points 21 to 23 of the Leniency Notice provide as follows:
‘21.      In order to qualify [for a reduction in the amount of the fine], an undertaking must provide the Commission with evidence
of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s
possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the
evidence.
22.      The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its
level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally
consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence
subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have
a greater value than that with only indirect relevance.
23.      The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a)      whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s
possession at that same time;
(b)      the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as
follows. For the:
–        first undertaking to meet point 21: a reduction of 30-50%,
–        second undertaking to meet point 21: a reduction of 20-30%;
–        subsequent undertakings that meet point 21: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at
which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It
may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of
its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct
bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when
setting any fine to be imposed on the undertaking which provided this evidence.’
In the present case, the Commission found that Degussa satisfied the conditions to qualify for total immunity from any fine.
EKA Chemicals, the applicant and Solvay, which were regarded as respectively the first, second and third undertakings to have
satisfied the requirements of point 21 of the Leniency Notice, received fine reductions of 40%, 30% and 10% respectively (recitals
501 to 524 of the contested decision).
By the present plea, the applicant maintains, in substance, that the contested decision is vitiated by errors of fact and
law and that the Court ought to grant it an additional reduction in the amount of the fine in light of the extent and value
of its cooperation during the administrative procedure.
The present plea falls into four limbs.
The first limb, alleging an error of law in the interpretation of the Leniency Notice
The applicant maintains that the Commission erred in law, in recital 512 of the contested decision, by interpreting the Leniency
Notice from the viewpoint of the time factor alone and by treating the date of the submission of evidence as the essential
criterion in its application. In particular, it maintains that it provided the most important contribution to establishing
the infringement and that the significant added value of its contribution justified its being regarded as the ‘first undertaking’
for the purposes of point 23 of the Leniency Notice.
It is apparent from the undisputed facts of the contested decision that EKA Chemicals made its leniency application on 29
March 2003, made an oral statement on 31 March 2003 and provided evidence of the infringement during the same week (recitals
67, 503 and 505 of the contested decision).
It is also undisputed that it was after those events that the applicant sent the Commission its leniency application, accompanied
by 13 annexes stating that they contained documents concerning the cartel in question, by fax of 3 April 2003, at 15.50 hrs.
On 26 May 2003, the applicant submitted to the Commission new material relating to its leniency application, including explanations
on the documents sent on 3 April 2003 (recitals 69, 510 and 516 of the contested decision).
In the contested decision, the Commission stated that EKA Chemicals had been the first undertaking to meet the requirements
of point 21 of the Leniency Notice, since, on 29 and 31 March 2003, it had produced evidence which represented significant
added value with respect to the evidence already in the Commission’s possession at the time of its submission (recital 503)
and that the applicant had been the second undertaking to meet the same requirements, by providing the evidence submitted
on 3 April 2003 (recital 509).
In recital 512 of the contested decision, with which the applicant takes issue, the Commission stated:
‘… It is clear from point 23 of the Leniency Notice that the time of submission of any submission that meets the threshold
of significant added value is determinant for the band of reduction. The evidence submitted is compared with the evidence
already in [the] Commission’s possession at the time such evidence is provided. Therefore, in order to establish whether this
submission represents significant added value, only the elements already in the Commission’s file and the evidence provided
by the applicant are taken into account. The Commission has already explained that it considers that the submission of EKA
[Chemicals] of 29 March 2003, together with the corporate statement of 31 March 2003, met the threshold of significant added
value with respect to the evidence already in the Commission’s possession, as set out in point 21 of the Leniency Notice.
This results in EKA [Chemicals] being placed in the first band pursuant to point 23 of the Leniency Notice. This means that
the value of [the applicant’s] submissions can only be relevant for establishing a possible level of reduction within the
subsequent band.’
The Court notes, in this respect, that, according to points 21 and 23 of the Leniency Notice, in order to qualify for a reduction
of the fine, an undertaking must provide the Commission with evidence which represents significant added value with respect
to the evidence which was already in its possession.
Moreover, for the purposes of applying the bands of reduction of the fine provided for in point 23(b) of that notice, the
Commission must establish the time at which the undertaking satisfied that requirement.
That interpretation is supported by the general scheme of the system laid down by the notice in question, which provides for
three separate bands for the ‘first’, ‘second’ and ‘subsequent’ undertakings meeting the requirement in question, which therefore
implies that the Commission is required to determine the precise time at which the conditions for a reduction of the fine
are met by the undertaking concerned, by comparing the evidence provided with that already in its possession when the application
is made.
In light of those considerations, the Commission was right, in applying the bands referred to in point 23 of the Leniency
Notice, in recitals 503 to 509 of the contested decision, to take account of the time at which EKA Chemicals and the applicant
respectively met the requirements of point 21 of the Leniency Notice.
Those considerations are not called into question by the applicant’s arguments by which it disputes the approach adopted,
on a number of grounds.
First of all, the interpretation which the applicant puts forward, according to which the reference to the ‘first’ undertaking
in point 23 of the Leniency Notice must be understood as referring to the undertaking whose submission of evidence has the
highest added value, is in no way borne out by the terms of that point, which specifically refer to the ‘first undertaking
to meet point 21’, that is to say, the condition of providing evidence which represents significant added value with respect
to the evidence already in the Commission’s possession when the application is made.
Second, the applicant is mistaken in its complaint that the Commission adopted an approach that focused ‘solely on the time
factor’, which amounted to rewarding the first undertaking to cooperate and thus relying upon ‘the timing alone, regardless
of the extent to which the submission of evidence represented added value’.
As is clear from recitals 503, 509 and 515 of the contested decision, on classifying the undertakings which made a leniency
application within the bands provided for in point 23 of the Leniency Notice, the Commission did not rely solely upon the
order in which the undertakings made their applications, but took account of the value of their submissions of evidence, examining,
in accordance with the condition laid down in point 21 of the notice, whether the evidence submitted offered significant added
value with respect to the evidence already in its possession when the particular application was made.
Contrary to the applicant’s submission, that approach of taking account of both the timing and the value of the submission
of evidence and rewarding the undertaking which first satisfies the conditions for obtaining a reduction, is consistent with
the objectives pursued by the Leniency Notice in that it encourages undertakings wishing to cooperate to do so as early as
possible in the inquiry by providing, as soon as they apply for leniency, all the evidence available to them. In particular,
by creating an incentive to meet the threshold of significant added value with their first application for leniency, it prevents
undertakings making an application for leniency from measuring their efforts to cooperate, piecemeal, throughout the procedure.
Third, since the Leniency Notice is based on an approach which requires the precise chronological order of applications for
leniency to be established, in accordance with the objectives of transparency and legal certainty, no distinction may be made
in its application according to whether the lapse of time between applications is long or short. Consequently, the applicant
cannot rely upon the circumstance that, in this case, only a few days elapsed between the applications made by EKA Chemicals
and itself, and only a few hours between Solvay’s application and its own.
Fourth, the applicant can draw no argument from the solution adopted in Case T‑116/04
Wieland-Werke
v
Commission
[2009] ECR II‑1087, paragraph 127, according to which, in assessing the degrees of cooperation provided by two undertakings,
the timing cannot be taken into account in situations where the information sent by the parties concerned was sent within
a fairly brief lapse of time and at an essentially identical stage of the administrative procedure.
Suffice it to recall that the solution referred to relates to Section D of the Commission notice on the non-imposition or
reduction of fines in cartel cases (OJ 1996 C 207, p. 4), which makes no reference to the criterion of whether one undertaking
started to cooperate before another. Moreover, in the judgment referred to, the Court rejected the argument that point 23
of the Leniency Notice was applicable, by analogy, to the case at hand (
Wieland-Werke
v
Commission
, paragraph 156 above, paragraphs 126 and 129).
Fifth, in so far as the applicant relies upon the rules applicable in certain Member States, suffice it to observe that the
leniency programme adopted by the Commission is autonomous and thus the programmes applied by the competition authorities
of the Member States cannot undermine the interpretation to be given to the provisions of points 21 and 23 of the Leniency
Notice.
Sixth, as regards the model leniency programme drawn up by the European Competition Network in September 2006, it must be
pointed out that that model, which was intended, in particular, to lead to the voluntary harmonisation of the leniency programmes
applied by the members of the network, post-dates the adoption of the Leniency Notice and cannot therefore provide any guidance
on its interpretation.
In any event, paragraph 11 of the model, to which the applicant refers and which states that ‘in order to determine the appropriate
level of reduction of the fine, the [competition authority] will take into account the time at which the evidence was submitted
(including whether the applicant was the first, second or third, etc. undertaking to apply) and the [competition authority’s]
assessment of the overall value added to its case by that evidence’, in no way precludes the approach adopted by the Commission
in the present case, which is based upon precisely those same factors. As regards the precise combination of the aspects relating
to the timing and the value of the evidence, explanatory note 24 of the model states that there are ‘various ways of combining
these parameters to reward the contribution of the applicant’, at the same time emphasising the importance of ‘a significant
difference between immunity from fines and reductions of fines in order to make applications for immunity significantly more
attractive’, which is not in issue in the present case.
Lastly, in so far as, in its application, the applicant ‘invites the Court to consider of its own motion the possible illegality
of the provisions in question of the Leniency Notice, in light of general legal principles, and in particular the principles
of equal treatment, proportionality and equity’, suffice it to observe that that last argument in no way differs from those
which the Court has already examined and rejected. It cannot, therefore, be upheld.
Consequently, the first limb of the present plea must be rejected.
The second limb, alleging that the added value of the evidence submitted by the applicant was higher than that of the evidence
submitted by EKA Chemicals
The applicant maintains that, had the Commission interpreted the Leniency Notice correctly, it would necessarily have concluded
that it was the first undertaking to meet the requirements for obtaining a reduction of the fine. The evidence which the applicant
provided contributed significantly to the Commission’s establishing the infringement and, in particular, offered a much higher
added value than that provided by EKA Chemicals.
It is clear from the Court’s examination of the first limb of the present plea that the Commission correctly established the
order of the undertakings which had met the requirements for obtaining a reduction of the fine, by assessing whether each
undertaking had provided evidence representing a significant added value, within the meaning of point 21 of the Leniency Notice,
before any other undertaking had met that requirement.
Since the Commission found that the evidence provided by EKA Chemicals between 29 and 31 March 2003 had met that requirement,
something which the applicant does not dispute in the context of the present limb of the plea, the Commission was right to
classify it as the first undertaking, within the meaning of point 23(b) of the Leniency Notice, irrespective of the value
of any evidence submitted subsequently, including that provided by the applicant.
The second limb of the plea cannot therefore succeed.
The third limb, put forward in the alternative, alleging that the evidence provided by EKA Chemicals offered no significant
added value
The applicant maintains that the Commission made an error of fact in considering that the evidence provided by EKA Chemicals
between 29 and 31 March 2003 had represented ‘significant added value’ within the meaning of points 21 to 23 of the Leniency
Notice. According to the applicant, that evidence merely corroborated evidence provided by Degussa and related, in substance,
to the Scandinavian market and to bilateral meetings dating back to the beginning of the infringement, before the rules of
the game of the multilateral cartel in question had been established.
It must be borne in mind in this connection that, although in appraising the cooperation provided by members of a cartel,
the Commission may not disregard the principle of equal treatment, it enjoys a broad discretion in assessing the quality and
usefulness of the cooperation provided by any given undertaking. Thus, only a manifest error of assessment by the Commission
is open to censure (see
Wieland-Werke
v
Commission
, paragraph 156 above, paragraph 124 and the case-law cited).
In the present case, the Commission held that EKA Chemicals had produced evidence which represented significant added value
with respect to the evidence which was already in its possession on the date of the submission of that evidence (recital 503
of the contested decision).
In this respect, first of all, the Court would point out that it is apparent from recital 506 of the contested decision that
EKA Chemicals provided contemporaneous documents about certain meetings and other collusive contacts relating to facts previously
unknown to the Commission which had a direct bearing on the establishment of the duration of the cartel, as regards the period
between 31 January 1994 and 14 October 1997, and evidence corroborating and complementing that submitted by Degussa, in respect
of the period between 14 October 1997 and 31 December 1999.
As regards the finding that there had been a single infringement covering the whole EEA territory, a fact which the applicant
does not dispute, the accuracy of the assessment of the information provided by EKA Chemicals is not undermined by the fact
that it related mainly to the Scandinavian market. It should be recalled that EKA Chemicals submitted information about contacts
with producers on the ‘continent’ and that, moreover, a number of instances of unlawful conduct related without distinction
to the Scandinavian and ‘continental’ markets (see, in particular, recitals 106 and 144 of the contested decision).
Next, the fact upon which the applicant relies, namely that the evidence submitted by EKA Chemicals related to a large extent
to the initial period of the infringement, does not call into question the significant added value of that evidence. The Court
observes that the evidence provided by EKA Chemicals enabled the Commission to determine that the cartel commenced on 31 January
1994 and to establish the facts relating to the initial period of the cartel, between 31 January 1994 and 14 October 1997.
Contrary to the applicant’s submission, therefore, that evidence did not merely corroborate the evidence already in the Commission’s
possession at the time of the application in question. Moreover, as is clear from recital 506 of the contested decision, the
evidence submitted by EKA Chemicals included evidence corroborating and complementing that submitted by Degussa, in respect
of the later period between 14 October 1997 and 31 December 1999.
Since the value of the evidence submitted by the applicant has no bearing upon that assessment, the applicant cannot validly
dispute it by stating that it had offered more detailed evidence relating to the precise operating mechanism of the cartel
in question in relation to the periods in question.
Lastly, the significant added value of the evidence submitted by EKA Chemicals cannot be called into question by the applicant’s
argument based upon the allegedly small number of recitals of the contested decision in which that evidence was used.
In light of those considerations, the arguments relied on by the applicant fail to show that the Commission made a manifest
error in concluding that EKA Chemicals had submitted evidence offering significant added value, within the meaning of point
21 of the Leniency Notice, before the date of the application for leniency made by the applicant.
Accordingly, the third limb of the plea must be rejected.
The fourth limb, put forward in the further alternative, claiming an additional reduction in the amount of the fine for reasons
falling outside the scope of the Leniency Notice
The applicant argues that the Commission ought to have granted it an additional reduction in the amount of the fine on account
of its effective cooperation, outside the scope of the Leniency Notice, in accordance with the Guidelines, so as to reflect
the ‘proper value’ of its submission of evidence, having regard to the manifestly inadequate reduction granted it under the
Leniency Notice.
It is sufficient to recall, in this respect, that, in relation to infringements which fall within the scope of the Leniency
Notice, as a rule, an interested party cannot validly complain that the Commission failed to take into account the extent
of its cooperation as an attenuating circumstance outside the legal framework of the Leniency Notice (see, to that effect,
Case T‑15/02
BASF
v
Commission
[2006] ECR II‑497, paragraph 586 and the case‑law cited).
That applies a fortiori in the present case, since the Commission took the applicant’s cooperation into account, by reducing
the fine pursuant to the Leniency Notice. In those circumstances, the applicant cannot validly complain that the Commission
did not apply a further reduction to the fine imposed on the applicant, outside the scope of that notice.
Moreover, in so far as the applicant alleges circumstances justifying an exception to that conclusion, maintaining that the
value of its contribution had only partially been taken into account under the Leniency Notice, the Commission granted the
applicant the maximum reduction of 30%, available within the band applicable to it under point 23 of the Leniency Notice,
despite the fact that the applicant had provided additional material only on 26 May 2003, several weeks after its initial
application for leniency, which was limited to 13 annexes stating that they contained documents concerning the cartel in question
(recitals 510 and 513 of the contested decision).
Since its cooperation was rewarded by the grant of the maximum reduction available within the band applicable to it under
the Leniency Notice, the applicant cannot in any event validly claim an additional reduction on the same grounds, under the
Guidelines.
Consequently, the sixth plea must be rejected.
As regards the claim, made in the alternative, for the adjustment of the amount of the fine imposed on the applicant, the
Court takes the view that there is nothing in this case which justifies a reduction of the fine and therefore there is no
cause for it, in the exercise of its full jurisdiction in this regard, to uphold that application.
It follows from all the foregoing that the application must be dismissed in its entirety.

Costs
Under Article 87(2) of the Rules of Procedure, 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, which the Commission has applied for.
On those grounds,
THE GENERAL COURT (Sixth Chamber, Extended Composition)
hereby:
1.
Dismisses the action;
2.
Orders Arkema France SA to pay the costs.
Vadapalas
Prek
Dittrich
Truchot

O’Higgins
Delivered in open court in Luxembourg on 14 July 2011.
[Signatures]
Table of contents
Background
The contested decision
Procedure and forms of order sought
Law
The first plea in law, alleging breach of the rules on holding a parent company liable for infringements committed by a subsidiary
and the principle of equal treatment
Preliminary observations
The alleged breach of the rules on holding a parent company liable for infringements committed by its subsidiary
The alleged breach of the principle of equal treatment
The second plea in law, alleging errors of fact in relation to the imputation of the infringement to Total and Elf Aquitaine
The third plea in law, alleging breach of the duty to state reasons and the principle of sound administration
The fourth plea in law, alleging errors of law and fact in relation to the increase in the amount of the fine in respect of
deterrent effect
The fifth plea in law, alleging errors of law and fact in relation to the increase in the amount of the fine on account of
repeated infringement
The first limb, alleging breach of the principle that penalties must have a proper legal basis and the principle of legal
certainty
The second limb, alleging breach of the principle non bis in idem and the principle of proportionality
The sixth plea in law, alleging errors of law and fact in relation to the reduction in the amount of the fine in application
of the Leniency Notice
The first limb, alleging an error of law in the interpretation of the Leniency Notice
The second limb, alleging that the added value of the evidence submitted by the applicant was higher than that of the evidence
submitted by EKA Chemicals
The third limb, put forward in the alternative, alleging that the evidence provided by EKA Chemicals offered no significant
added value
The fourth limb, put forward in the further alternative, claiming an additional reduction in the amount of the fine for reasons
falling outside the scope of the Leniency Notice
Costs
*
Language of the case: French.