Judgment — ECLI:EU:C:2013:289
Date: 2013-05-08
Language of the case: Italian
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal against penalty
Origin: Italy

summary reasons are sufficient. In addition, according to the Commission, the General Court should have given the Commission the opportunity of clarifying and specifying its reasons, as it did in the case which gave rise to its judgment of 13 December 2012 in Case T‑103/08 Versalis and Eni v Commission. 120 Finally, in the view of the Commission, recitals 366 to 373 to the contested decision clearly establish the continuity between the addressee undertaking of the PVC II decision and that involved in the infringement at issue in the present case. Consequently, the Commission seeks to have the judgment under appeal set aside as regards the section where the General Court annulled in part the contested decision in respect of the finding of repeated infringements both with respect to the Polypropylene decision and the PVC II decision and, in any event, in so far as the annulment of that decision by the General Court refers to the finding of repeated infringements as regards the PVC II decision. 121 In Eni’s submission, the Commission, in its cross-appeal, bases its arguments on an incorrect reading of the contested decision and the judgment under appeal and on a misleading statement of the objections which Eni raised during the administrative procedure and at first instance. 122 Eni submits that European Union law does not require the addressee of a Statement of Objections to dispute its different factual or legal elements during the administrative procedure and refers, in that regard, to Case T‑234/07 Koniklijke Grolsch v Commission [2011] ECR II‑6169, paragraph 37. The General Court was correct to find that the Commission had not been able to impute the repeated infringements to Eni by attributing to it liability ex post for the infringements imputed at the time to EniChem SpA and Anic SpA, because of the control of the capital of those two companies, which theory the General Court regarded, moreover, as not having been demonstrated. 123 Eni submits that, in the Polypropylene and PVC II decisions, the Commission in no way involved the parent company, Eni, despite the fact that a problem of liability for the infringements found came to the Commission’s attention. It could not rely retroactively on the presumption of control by the parent company of 100% of the capital in its subsidiaries without, in particular, breaching the principles of legal certainty and legitimate expectations and causing an unjustified reduction in the rights of the defence of Eni. 124 In addition, Eni had already denied during the administrative procedure that it could be liable on the basis of the sole consideration of its position at the head of the group and by way of a presumption. It is of the opinion that the Commission ought to have shown that it had actually exercised a decisive influence over its subsidiaries in the PVC and polypropylene sector and that they did not operate autonomously in the market. 125 With regard to the complaint alleging infringement of the principle of audi alteram partem and of other procedural rules, Eni argues that the Commission does not identify those rules in it pleading and that that complaint, inasmuch as it is entirely vague, is inadmissible. According to Eni, an infringement of the principle of audi alteram partem cannot be validly claimed except in the case of pleas raised of its own motion by the General Court. The plea accepted by the General Court was raised in Eni’s application. Furthermore, the ‘putting into order’ of the reasons for the contested decision was possible only if it had related to the reasons for a specific point of fact or law. In the present case, such reasons are lacking. Findings of the Court 126 It must be recalled, first of all, that the statement of reasons required by Article 296 TFEU 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 such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR, paragraph 72 and the case-law cited). 127 Thus, in the context of individual decisions, in accordance with the Court’s settled case‑law, the purpose of the obligation to state reasons for an individual decision is both to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is vitiated by a defect which may permit its legality to be contested (Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraph 73 and the case-law cited). 128 The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the European Union courts (Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraph 74 and the case-law cited). 129 It follows therefrom that the Commission, when imposing a fine on a company for an infringement of the European Union competition rules and when applying, in calculating the fine, a multiplier to take account of the fact that that company had already been involved in an infringement of the competition rules, is required to provide, with the decision imposing the fine, a statement of reasons enabling the European Union Courts and that company to understand in what capacity and to what extent it was involved in the earlier infringement. In particular, if the Commission considers that that company was part of the addressee undertaking of the decision relating to the earlier infringement, it is for the Commission to give sufficient proper reasons for that assertion. 130 In the present case, it must be borne in mind that, in recital 430 to the second Statement of Objections, the Commission indicated that it would take into account previous findings of similar infringements, referring in that regard to the Polypropylene and PVC II decisions and indicating that ‘Eni’ had been ‘involved’ in those decisions. In essence, the same succinct finding appears in recital 487 to the contested decision, where the Commission notes, furthermore, that ‘EniChem’ had already been an addressee of those decisions. Finally, recital 488 to the contested decision can be understood as meaning that, according to the Commission, the same undertaking within the meaning of Article 101 TFEU is the author of the infringements forming the subject-matter of the Polypropylene and PVC II decisions and of the infringement found by the contested decision. 131 Since the Polypropylene decision was addressed, inter alia, to Anic SpA and the PVC II decision, inter alia, to ‘EniChem SpA’, it is clear that the statements made in the contested decision and referred to in the preceding paragraph do not at all enable it to be understood in what capacity and to what extent Eni, which is not among the addressees of the Polypropylene decision or the PVC II decision, was involved in those decisions. 132 Although the Commission submits that recitals 366 to 373 to the contested decision contain an exact description of all the events involving ‘EniChem’, those explanations concern only the changes which occurred within the Eni group between 20 May 1996 and 28 November 2002, as the General Court rightly noted in paragraph 167 of the judgment under appeal. However, those recitals do not contain any statement concerning the companies forming the addressee undertakings of the Polypropylene and PVC II decisions, do not mention whether those companies are identical to those referred to in the contested decision, which Eni disputes, and do not deal either with any changes in that context which took place between the date of adoption of the Polypropylene decision, namely 23 April 1986, and the PVC II decision, namely 27 July 1994, and the start of the infringement found by the contested decision, namely 20 May 1996. 133 Accordingly, in that regard, insufficient reasons are stated for the contested decision. 134 Next, with regard to the alleged infringement of the principle of audi alteram partem giving rise to an infringement of the Commission’s rights of defence, it is sufficient to recall that Eni, as it rightly points out, raised the complaint of a lack of reasoning in its application at first instance. Consequently, since the Commission had the opportunity to state its position in full on that complaint in its defence and at the hearing at first instance, it is not possible to find that there has been any infringement of the principle of audi alteram partem harming the Commission’s rights of defence. 135 In addition, as is apparent from the case-law cited in paragraph 128 of the present judgment, the Commission is required to give sufficient reasons at the same time as the contested decision is adopted. Therefore it does not appear that more extensive information that the Commission, in the absence of any alleged infringement of the principle of audi alteram partem, could have given to the General Court would have been likely to affect in any way the result of the judgment under appeal. 136 With regard to the argument that Eni, during the procedure before the Commission, had not yet raised the point that the addressees of the Polypropylene and PVC II decisions, on the one hand, and of the contested decision, on the other, were not identical, it suffices to recall that, as Eni has rightly pointed out, there is no provision of European Union law requiring the addressee of a Statement of Objections to dispute its various factual or legal elements during the administrative procedure. 137 In those circumstances, the General Court did not err in law by holding that the Commission, in the contested decision, did not provide sufficient detailed and precise evidence in the contested decision to support a finding that the same ‘undertaking’ within the meaning of Article 101 TFEU had repeated an infringement and by annulling, consequently, Article 2(c) of the contested decision, in so far as it sets the fine imposed on Eni at EUR 272.25 million. 138 Accordingly, since the single ground of appeal put forward by the Commission in support of its cross-appeal is unfounded, it must be dismissed. Costs 139 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court of Justice is to make a decision as to the costs. Under Article 138(1) of those Rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 140 As regards the main appeal, since the Commission applied for costs against Eni and since Eni was unsuccessful, it must be ordered to pay the costs. 141 As regards the cross-appeal, since Eni applied for costs against the Commission and since the Commission’s single ground of appeal was unsuccessful, it must be ordered to pay the costs. On those grounds, the Court (First Chamber) hereby: 1. Dismisses the main appeal and the cross-appeal; 2. Orders Eni SpA to pay the costs of the main appeal; 3. Orders the European Commission to pay the costs of the cross-appeal. [Signatures] * Language of the case: Italian.