Judgment — ECLI:EU:T:2012:47
Date: 2012-02-02
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded

summary, in order to set the amount of the fines at a level which ensures that they have a sufficient deterrent effect, it is appropriate, to apply a multiplication factor to the fines to be imposed. In 2006, the financial year preceding this Decision, the total turnover of the undertakings to which this Decision is addressed was as follows: Eni: EUR 86 105 million, Dow: EUR 39 124 million, Bayer: EUR 28 956 million, [EI] DuPont: EUR 21 839 million, Tosoh: EUR 5 350 million and Denka: EUR 2 254 million. On that basis, it is appropriate not to apply any multiplier to the fines to be imposed on Bayer, [EI] DuPont, Tosoh and Denka and to multiply by 1,4 the fine to be imposed on Eni and by 1,1 the fine to be imposed on Dow.’ 119 As regards, lastly, the application of the 2002 Leniency Notice, the Commission decided, in recital 637 of the contested decision, that ‘[EI] DuPont/DPE [LLC and DPE SA] should be granted a reduction of 25% of the fine that would otherwise have been imposed on them’. 120 In recital 635 of the contested decision, the Commission explained: ‘In determining, pursuant to point 23 of the [2002] Leniency Notice, the percentage reduction of the fine for which DDE/DPE [LLC and DPE SA] qualifies within the band of 20% to 30%, the Commission takes into account the extent to which the evidence submitted by DDE/DPE [LLC and DPE SA] represents added value, as well as the time at which DDE/DPE [LLC and DPE SA] submitted that evidence. DDE/DPE [LLC and DPE SA] approached the Commission 10 months after the Commission had carried out surprise inspections at Dow and 4 months after the Commission’s inspections at Denka. The added value of DDE/DPE [LLC and DPE SA’s] submission is mainly linked to those instances for which corroboration was still necessary, even after Tosoh’s submission, especially through the submission of direct evidence relating to the early cartel period and the further details that it confirmed or disclosed (including details on the general scope and functioning of the cartel). Without the direct evidence provided by DDE on the early years of the cartel, the Commission could only have relied on oral submissions from Bayer and Tosoh, which were partially contradictory. The documents submitted allowed the Commission to establish unambiguously the first two years of the cartel.’ Arguments of the parties 121 The applicant claims that, even if the Commission was correct to hold it liable for the infringement committed by DDE, it made manifest errors of assessment of the facts and errors of law in determining the amount of the fine which it imposed on the applicant. In that regard, it divides its second plea into three parts, concerning the application of the multiplier in respect of the duration of the infringement, the specific increase applied in order to ensure that the fine would be sufficiently deterrent and the reduction of the fine under the 2002 Leniency Notice. 122 Furthermore, as regards the amending decision of 23 June 2008, the applicant adds that, since it was held liable not for wrongdoing on its own part but for wrongdoing by DDE, it is not appropriate to impose on it a higher fine, as shareholder, or to impute to it, as shareholder, individual liability for any part of the fine. – First part, concerning the application of the multiplier in respect of the duration of the infringement 123 The applicant claims that multiplication of the starting amount of the fine by 6.5 to take account of the duration of the fine for which it is held liable – fixed by the Commission at six years and one month (for the period during which the joint venture was in existence, 1 April 1996 to 13 May 2002) – and which amounts to treating one month as though it were half a year, even if consistent with the wording of point 24 of the 2006 Guidelines, constitutes a manifest error of assessment of the facts and breaches the principles of proportionality and equal treatment. In the reply, the applicant states that it does not claim that the 2006 Guidelines are illegal. 124 Multiplication by 6.5 constitutes a breach of the principles of proportionality and equal treatment, since the undertakings were punished for longer periods, and, in this case a considerably longer period than the duration of the infringement. In the light of Joined Cases T-101/05 and T-111/05 BASF v Commission [2007] ECR II‑4949, paragraph 219, where it was held that fines are more proportionate where they are calculated in a way that reflects the precise duration of the infringement, the Commission ought to have calculated the multiplier for duration in the present case on the basis of the precise duration of the infringement. 125 The principle of equal treatment is also infringed, since the Commission did not apply a multiplier to Bayer, EI DuPont, Denka, EniChem or Tosoh that was higher than the number of years of the infringement, that is to say, nine years and ‘a few hours’ (from 13 May 1993 to 13 May 2002). Unlike those undertakings, which were punished by the application of a multiplier of 9, the applicant was punished by the application of a multiplier significantly in excess of the duration of its infringement. 126 In that regard, the applicant also claims that, on the assumption that the Commission were able to demonstrate that the applicant was aware of the existence of the cartel and could rely in that regard on the discussion of the closure of the plant, and on the assumption that that were relevant in order to impute DDE’s conduct to the applicant, liability could be imputed to the applicant only from that time. The infringement would therefore have lasted much less than six years, as the discussion within the Members’ Committee did not take place until January 1998. 127 At the hearing, the applicant put forward an argument that point 24 of the 2006 Guidelines is illegal. 128 The Commission contends that this part of the plea must be rejected as unfounded. In its view, the argument alleging that point 24 of the 2006 Guidelines may be illegal contradicts the applicant’s claims in the reply and, in any event, must be rejected as out of time. – Second part, relating to the specific increase applied in order to ensure that the fines would be sufficiently deterrent 129 The applicant reiterates that, since it has done nothing wrong, the fine imposed on it can have no deterrent effect and can have only negative effects on competition. In addition, it submits that by increasing the amount of the fine imposed on it by 10%, the Commission has made a manifest error of assessment of the facts and has breached the principle of equal treatment. The applicant observes that in Commission Decision C(2007) 5469 final of 20 November 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.432 – Professional videotapes) (‘the Professional Videotapes decision’), the Commission imposed a fine on Sony that was increased by the same factor of 10%, although that undertaking’s worldwide turnover was more than 40% higher than the applicant’s. 130 In the applicant’s submission, the principle of equal treatment applies not only to the addressees of the same decision, but also between the decision referred to above and the contested decision, which were adopted within two weeks of each other. Furthermore, the Commission’s argument that the relevant market in the Professional Videotapes decision (see paragraph 129 above) had different characteristics, in that the videotapes in question in that case were no longer produced, is irrelevant. In any event, the applicant claims that it is in the same position as Sony, since it no longer distributed CR at the time when the Commission adopted the contested decision. If that factor were to play a role, the contested decision would be discriminatory vis-à-vis the applicant by comparison with EniChem, which is still active in the CR sector. 131 The Commission contends that this part of the plea must be rejected as unfounded. – The third part, relating to the reduction of the fine under the 2002 Leniency Notice 132 The applicant maintains that, by granting it a reduction of only 25% of the amount of its fine under the 2002 Leniency Notice, when the applicable band is 20% to 30% and the first applicant for leniency, Tosoh, was granted the maximum reduction provided for in the band applicable to its situation, the Commission made a manifest error of assessment of the facts and an error of law. Furthermore, the Commission failed to provide adequate reasons in that regard and, by treating the first applicant for leniency more favourably, it breached the principle of non-discrimination. 133 The applicant emphasises, in particular, that DDE’s application for leniency was lodged only four months later than Tosoh’s first submission, which is a small difference in the context of an investigation such as that in the present case. Furthermore, the succession in time of the leniency applications is already taken into consideration in the bands of reduction laid down in the 2002 Leniency Notice. 134 Since the evidence produced in DDE’s leniency application had real added value, as the contested decision shows at several points, DDE ought to have received the maximum possible reduction in the band laid down in the 2002 Leniency Notice. The Commission ought at least to have stated why DDE, and therefore the applicant, could not be granted such a reduction. The applicant disputes the Commission’s assertion that it is not required to undertake an explicit comparative analysis of the reasons why, in relative terms, one undertaking is not granted as high a reduction as another undertaking. In its submission, the Commission should be in a position to demonstrate that it complied with the principles of non‑discrimination and proportionality. 135 The Commission contends that this part of the plea must be rejected as unfounded. Findings of the Court 136 It is appropriate to analyse first of all the three parts of this plea, and subsequently the applicant’s arguments relating to the amending decision of 23 June 2008. – First part, concerning the application of the multiplier in respect of the duration of the infringement 137 It should be borne in mind that the fines that the Commission imposed in the present case are governed by Article 23 of Regulation No 1/2003, which corresponds to Article 15 of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), which was in force when the infringement was committed. In order to determine the amount of the fine, the Commission applied the 2006 Guidelines. Those guidelines were published before the statement of objections was sent to the applicant on 13 March 2007. 138 According to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine to be imposed on undertakings guilty of infringements of the competition rules, regard is to be had both to the gravity and to the duration of the infringement. 139 It has been consistently held that, within the limits laid down in Regulation No 1/2003, the Commission enjoys a wide discretion when exercising its power to impose such fines (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 172, and Erste Group Bank and Others v Commission, paragraph 110 above, paragraph 123). That power is however limited; where the Commission adopts guidelines which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, the Commission itself then limits that discretion in that it must comply with the guidelines which it has imposed upon itself (see, to that effect, Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 95, and Case T‑73/04 Carbone-Lorraine v Commission [2008] ECR II‑2661, paragraph 192 and the case-law cited). The Commission may not depart from the Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment (Dansk Rørindustri and Others v Commission, paragraph 209). 140 As regards the multiplier in respect of the duration of the infringement, point 24 of the 2006 Guidelines provides that, ‘[i]n order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales … will be multiplied by the number of years of participation in the infringement’ and that ‘[p]eriods of less than six months will be counted as half a year; periods longer than six months but shorter than one year will be counted as a full year’. 141 Moreover, it is settled case-law that the Commission may at any time adjust the level of fines if the proper application of the competition rules so requires (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 109, and Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraphs 236 and 237), since such an alteration of an administrative practice may then be regarded as objectively justified by the objective of general prevention of infringements of the competition rules. The increase in the level of fines cannot therefore, in itself, be regarded as unlawful under the principle that penalties must have a proper legal basis, provided that it remains within the statutory limits laid down by Article 23(2) and (3) of Regulation No 1/2003, as interpreted by the Courts of the European Union (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 81, and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 43). 142 Although the method of assessing the duration of an infringement by progressive thresholds each of six months may have the effect of ignoring the differences which may exist between the exact durations during which the undertakings participated in the infringement, it cannot be censured, on condition that the setting of such thresholds complies with the principle of equal treatment, which prohibits comparable situations from being treated differently and different situations from being treated in the same way, unless such treatment is objectively justified, and the principle of proportionality, which requires measures adopted by European Union institutions not to exceed the limits of what is appropriate and necessary in order to attain the objective pursued. However, the European Union Courts’ review of the lawfulness of the exercise of the Commission’s discretion in the matter must confine itself to checking that the thresholds set are coherent and objectively justified and the Courts must not immediately substitute their own assessment for that of the Commission (see, to that effect and by analogy, Itochu v Commission, paragraph 106 above, paragraphs 73 and 74). 143 The fact that the multiplier in respect of the duration of the infringement is not strictly proportionate to the exact duration of the infringement committed by the undertaking in question cannot be censured, since it is merely the result of the method of assessing the duration of an infringement by progressive thresholds each of six months. Even if the effect of the application of that method is that a multiplier calculated by reference to a period longer than that during which they actually participated in the infringement is applied to certain undertakings, the difference in treatment is objectively justified by the objective of general prevention and the taking of effective action against infringements of the European Union competition rules (see, to that effect and by analogy, Itochu v Commission, paragraph 106 above, paragraphs 76, 77 and 81). Moreover, in the light of the generally long duration of infringements, in particular of the most serious infringements, to which Article 81 EC is applied, the setting of progressive thresholds of six months is coherent, objectively justified and not disproportionate. 144 Thus, the Commission’s choice to treat periods of less than 6 months as half a year, and therefore to treat a period of 1 month and 13 days as if it was half a year, and to treat periods of 6 months, but of less than 1 year, as a full year does not exceed the limits of the discretion which it has in that regard and does not infringe the principles of proportionality and of equal treatment. 145 Consequently, the argument put forward by the applicant at the hearing by which it sought a declaration that point 24 of the 2006 Guidelines is contrary to the principles of proportionality and of equal treatment must be rejected as unfounded, and it is not necessary to rule on its admissibility. 146 In the present case, it is common ground that DDE participated in the cartel from 1 April 1996 until 13 May 2002, that is during an infringement period of 6 years, 1 month and 13 days. Consequently, by setting the duration of the infringement at six years and one month and by multiplying the starting amount of the fine by a factor of 6.5, the Commission complied with the rules which it imposed upon itself in the 2006 Guidelines and, therefore, did not exceed the limits of its discretion. 147 As for the argument that the applicant bases on BASF and UCB v Commission, paragraph 124 above, it is sufficient to note that, in that case, it was in the exercise of its unlimited jurisdiction, and after having partially annulled the decision which was at issue, that the General Court had carried out a fresh calculation of the fine to be imposed on BASF and that the General Court had chosen to fine-tune the amount of the fine in such a way as to reflect the exact duration of BASF’s participation in the infringement in question, whilst pointing out that the Guidelines are without prejudice to the assessment of the amount of the fine by the Courts of the European Union, which have unlimited jurisdiction in that regard in accordance with Article 17 of Regulation No 17 (now Article 31 of Regulation No 1/2003). 148 Thus, first, it does not follow from that judgment, contrary to what the applicant suggests, that the Commission is required, in order for the principle of proportionality to be observed, to ensure that the multiplier applied in respect of the duration of the infringement reflects the exact duration of the participation of each undertaking in that infringement. Second, in the present case, it is not incumbent upon the Court, at this stage, in the absence of any finding that the contested decision is unlawful – as was the case in BASF and UCB v Commission, paragraph 124 above – to recalculate the amount of the fine imposed on the applicant; the Court is merely required to review the legality of the Commission’s application of the 2006 Guidelines to their situation. The argument that the applicant bases on BASF and UCB v Commission, paragraph 124 above, must therefore be rejected. 149 As regards the argument that, by multiplying the starting amount of the fine determined by reference to the value of sales by 9 for Bayer, EI DuPont, Denka, EniChem and Tosoh in respect of an infringement which lasted nine years and ‘a few hours’, and by multiplying that amount by 6.5 in the applicant’s case in respect of an infringement which lasted significantly less than six and a half years, the Commission infringed the principle of equal treatment, it should be noted that, in recital 515 of the contested decision, the Commission found that the applicant’s infringement established from 1 April 1996 until 13 May 2002 had lasted six years and one month. Similarly, as regards the other undertakings, the Commission found that their infringement established from 13 May 1993 until 13 May 2002 had lasted nine years. It follows that, when calculating the duration of the infringement, the Commission took into consideration only whole years and months and did not take account of days. Accordingly, when determining the duration of the infringement, the Commission applied the same method of calculation in respect of all the participants and did not infringe the principle of equal treatment. 150 Moreover, on the assumption that it were established that the other undertakings’ participation in the infringement did indeed exceed nine years, and even if the Commission erred in those undertakings’ favour by applying to the starting amount of their fines only a multiplier of 9, that fact cannot constitute a valid reason for reducing the fine imposed on the applicant, since no one may rely on an unlawfulness committed in favour of another party (see, to that effect, Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 170). That argument must therefore also be rejected. 151 As regards the argument that the applicant’s participation in the infringement could have started only from the time that it became aware of that infringement, it is sufficient to note, as is apparent from the analysis of the first plea, that the applicant’s liability results from the fact that it had the possibility of exercising decisive influence over its subsidiary’s business strategy and did in fact exercise that decisive influence, and not from its possible awareness of the cartel in question. That argument must therefore be rejected. 152 In the light of the foregoing, the first part of this plea must be rejected as unfounded. – The second part, concerning the specific increase applied in order to ensure that the fines would be sufficiently deterrent 153 It should be noted that point 30 of the 2006 Guidelines provides that ‘[t]he Commission will pay particular attention to the need to ensure that fines have a sufficiently deterrent effect; to that end, it may increase the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates’. 154 The applicant puts forward two arguments in this respect, both of which must be rejected. 155 First, as regards the argument that the fine cannot have any deterrent effect in respect of the applicant because it ‘did nothing wrong’, it is sufficient to observe that such reasoning is based on the premiss that no finding was made that the applicant had committed an infringement. However, it is clear from recitals 420 to 440 and Articles 1 and 2 of the contested decision that the applicant was held individually liable for an infringement which it is deemed to have committed itself on account of its close legal and economic links with DDE, by which it was able to determine DDE’s conduct on the market. As is apparent from the analysis of the first plea, the infringement committed by DDE is imputable to the applicant on account of the decisive influence that the applicant exercised over DDE’s conduct on the CR market. That argument must therefore be rejected. 156 Second, as regards the applicant’s argument that it is the victim of a breach of the principle of equal treatment because it was treated differently from another undertaking referred to in an earlier Commission decision and of a manifest error of assessment by the Commission in that regard, it must also be rejected. It is true that the principle of equal treatment is a general principle of law which the Commission is required to observe in a proceeding initiated pursuant to Article 81 EC and it prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified. However, in the context of calculating fines imposed under Article 23(2) and (3) of Regulation No 1/2003, the European Union Courts have recognised that, in order to attain the aim of deterrence, a certain difference in the treatment of the undertakings concerned by a Commission decision is inherent in the application of the method chosen by the Guidelines (Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 238). Furthermore, it follows from a consistent body of case-law that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination (JCB Service v Commission, paragraph 91 above, paragraph 205). Any lessons to be learnt from that practice can give only an indication, since the facts of the cases, such as the markets, products, countries, undertakings and periods concerned, are not the same (JCB Service v Commission, paragraph 91 above, paragraph 201). It follows from the foregoing that the fact that the Commission imposed on Sony a fine which was 10% higher, whilst its worldwide turnover was more than 40% higher than the applicant’s, is not, in the present case, evidence of discriminatory treatment against the applicant and cannot be relied on in the present case, contrary to the applicant’s submission. Furthermore, given the Commission’s broad discretion when setting fines (see paragraph 139 above), the applicant has also failed to establish the manifest error of assessment alleged. The argument must therefore be rejected, as must the second part of this plea. – The third part, concerning the reduction of the fine under the 2002 Leniency Notice 157 It should be borne in mind that, as is apparent from paragraphs 138 and 139 above, although the Commission enjoys a wide discretion when setting fines, the exercise of that discretion is however limited, inter alia by rules of conduct which the Commission has imposed on itself, not only in the Guidelines on the method of setting fines, but also in the 2002 Leniency Notice (see Lafarge v Commission, paragraph 139 above, paragraph 95 and the case-law cited). 158 In the 2002 Leniency Notice, the Commission set out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from a fine or be granted a reduction in the fine which would otherwise have been imposed on them. 159 Point 8 of the 2002 Leniency Notice states as follows: ‘The Commission will grant an undertaking immunity from any fine which would otherwise have been imposed if: (a) the undertaking is the first to submit evidence which in the Commission’s view may enable it to adopt a decision to carry out an investigation in the sense of Article 14(3) of Regulation No 17 … in connection with an alleged cartel affecting the Community; or (b) the undertaking is the first to submit evidence which in the Commission’s view may enable it to find an infringement of Article 81 EC … in connection with an alleged cartel affecting the Community.’ 160 Point 20 of the 2002 Leniency Notice states that ‘[u]ndertakings that do not meet the conditions [for exemption from fines] under Section A above [Immunity from fines] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed’ and point 21 states that ‘[i]n order to qualify, 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’. 161 As regards the concept of added value, the following explanation is given at point 22 of the 2002 Leniency Notice: ‘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.’ 162 Moreover, the Commission, once it has found that the evidence represents significant added value within the meaning of point 21 of the 2002 Leniency Notice, still has a margin of assessment when it is required to determine the exact level of the reduction of the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the 2002 Leniency Notice provides for fine-reduction bands for the various categories of undertakings concerned: ‘– 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%’. 163 In addition, according to the second paragraph of point 23(b) of the 2002 Leniency Notice: ‘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.’ 164 According to the case-law, the Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81). Moreover, the Commission has a certain discretion in determining whether the cooperation in question was ‘decisive’ in facilitating its task of finding the existence of an infringement and putting an end to it and it is only where it manifestly exceeds that discretion that it may be criticised (see Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 555 and the case-law cited). Accordingly, the review carried out by the General Court of the Commission’s assessment of the added value of the evidence provided by an undertaking in the context of the leniency programme is limited. 165 In the present case, the applicant claims that DDE ought to have received the maximum possible reduction in the band laid down in the 2002 Leniency Notice, since Tosoh, the first leniency applicant, was granted the maximum possible reduction in the band applicable to its situation. In the applicant’s submission, the evidence produced by DDE’s leniency application had real added value and that application was submitted only four months after Tosoh’s statement. 166 In that regard, it must first be observed that the applicant does not contest that DDE’s cooperation falls within the second indent of the first paragraph of point 23(b) of the 2002 Leniency Notice, as the Commission found in the contested decision, and that, on that basis, it was entitled to a reduction in its fine of between 20 and 30%. The reduction in the fine of 25% granted to the applicant in respect of DDE’s cooperation therefore complies with the band laid down for that purpose by the 2002 Leniency Notice. 167 Moreover, although, in assessing the cooperation given by members of a cartel, the Commission cannot disregard the principle of equal treatment (Case T‑116/04 Wieland-Werke v Commission [2009] ECR II‑1087, paragraph 124), which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (see Case C‑101/08 Audiolux and Others [2009] ECR I‑9823, paragraph 54 and the case-law cited), the assessment of the added value of the material contained in a leniency application is carried out by reference to the evidence already in the Commission’s possession. 168 First, it is perfectly clear from the uncontested findings in recital 635 of the contested decision that, even though DDE satisfied the conditions laid down in point 21 of the 2002 Leniency Notice relatively shortly after the statement of the first leniency applicant, the fact remains that the evidence relating to the cartel that was provided by DDE and that give rise to the reduction of the fine was only notified to the Commission 10 months after the Commission’s inspections at Dow, 4 months after the inspections at Denka and 4 months after Tosoh applied for leniency. 169 Second, since Tosoh’s cooperation preceded DDE’s, the Commission already possessed more evidence at the time DDE submitted its leniency application than when Tosoh submitted its application. Moreover, Tosoh had provided several self‑explanatory and unambiguous documents drafted at the time the infringement took place which allowed the Commission to establish facts which it could not have otherwise established and corroborated various instances for which the incriminating value of the available evidence was not obvious (see recital 622 of the contested decision), whereas the added value of DDE’s submission was mainly linked to those instances for which corroboration was still necessary, especially relating to the early cartel period (see recital 635 of the contested decision). Moreover, it is not disputed that Tosoh provided the Commission with significant evidence relating to the cartel only a week after the inspections at Denka. 170 It follows that the Commission, by taking into account, under the second paragraph of point 23(b) of the 2002 Leniency Notice, the time at which the evidence was submitted, without even having regard to the quality and the usefulness of the evidence submitted by DDE and, consequently, by granting it a reduction in the fine of 25% in respect of its cooperation for the purposes of establishing the existence of the cartel, did not, contrary to the applicant’s assertion, manifestly exceed its discretion in that regard. Moreover, since the situations of Tosoh and DDE are not comparable, the Commission did not infringe the principle of equal treatment in granting Tosoh the maximum possible reduction in the band applicable to its situation (which fell within the first indent of point 23(b) of the 2002 Leniency Notice) and DDE a reduction in the middle of the band applicable to its situation (which fell within the second indent of point 23(b) of the 2002 Leniency Notice). 171 Lastly, as regards the argument that the Commission did not provide adequate reasoning for its decision to adopt that approach, it should be borne in mind that, according to settled case-law, although, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the European Union Courts and the persons concerned the circumstances in which it has applied the Treaty (see Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 95 and the case-law cited). In the present case, it is apparent from the analysis carried out in paragraphs 165 to 171 above that the Commission gave proper reasons for its decision. The applicant’s argument alleging infringement of the obligation to state reasons must therefore be rejected. 172 The third part of this plea must therefore be rejected as unfounded. – The amending decision of 23 June 2008 173 As regards the amending decision of 23 June 2008, the applicant ‘believes that since it is not being held liable for something it did wrong, but for something DDE did, it is not appropriate to impose a higher fine on the shareholder or to hold the shareholder individually liable for any part of the fine’ (see paragraph 122 above). 174 None of the arguments put forward by the applicant against the amending decision of 23 June 2008 permits the conclusion that that decision is vitiated by illegality. 175 In that regard, It should be recalled that it is apparent from the amending decision of 23 June 2008 that the Commission realised that it had made an error in holding EI DuPont jointly and severally liable with the applicant for payment of EUR 4.425 million, since that amount was the result of the application of the multiplier of 10% for deterrence to only the applicant’s fine. Under the amending decision of 23 June 2008, the applicant became solely liable for payment of a fine of EUR 4.425 million, and the amount of the fine for payment of which EI DuPont and the applicant were held jointly and severally liable was reduced from EUR 48.675 million to EUR 44.250 million (see paragraphs 26 and 27 above). 176 It should also be recalled that, as is apparent from the analysis of the first plea, the applicant, EI DuPont and DDE formed part, for the purpose of the subject-matter of the cartel in question, of a single economic unit and therefore formed one and the same undertaking for the purposes of Article 81 EC, which adopted the same course of conduct on the CR market and participated in a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the entire territory of the EEA. It is also apparent from that analysis that the infringement committed by DDE was imputed to the applicant on account of the decisive influence that the applicant exercised over DDE’s conduct on the CR market. The applicant was therefore held individually liable for an infringement which it is deemed to have committed itself on account of its close legal and economic links with DDE, by which it was able to determine DDE’s conduct on the market in question. 177 The consequence, under European Union competition law, of the existence of an economic unit, consisting of several legal persons, is that an infringement committed by a subsidiary may be imputed to its parent company where that parent company has a real possibility of exercising decisive influence over its subsidiary’s conduct and where the Commission shows that the parent company did in fact exercise that decisive influence. The Commission may then regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary (see, to that effect, the judgment of the Court of Justice in Akzo Nobel, paragraph 73 above, paragraphs 60 and 61; see also, to that effect, Dansk Rørindustri and Others v Commission, paragraph 139 above, paragraphs 118 to 130, and Case T‑65/89 BPB Industries and British Gypsum v Commission [1993] ECR II‑389, paragraph 154). Under the same conditions, the Commission may also choose to impose a fine jointly and severally on the parent company and its subsidiary (Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 41). 178 It follows that the applicant’s argument that it ‘did nothing wrong’ is based on the incorrect premiss that no finding of an infringement was made as regards the applicant; as this is not the case, that argument must be rejected. 179 As regards the applicant’s argument that it was not appropriate to impose on it ‘a higher fine, [as] shareholder’, it must be stated that, contrary to what it suggests, the Commission did not increase the amount of its fine by the amending decision of 23 June 2008. It is true that it became solely liable for payment of a fine of EUR 4.425 million, but the amount of the fine for payment of which it is held jointly and severally liable with EI DuPont was reduced from EUR 48.675 million to EUR 44.250 million. The maximum amount that the Commission can claim from the applicant therefore remains EUR 48.675 million. 180 As regards the applicant’s argument that it was not appropriate to ‘to hold [it, as] shareholder[,] individually liable for any part of the fine’, it is sufficient to note that, in the light of the case‑law cited in paragraph 177 above, the Commission was entitled to impose on it a fine for the infringement committed by the joint venture of which it was one of the parent companies. In addition, even though the Commission’s choice of imposing a fine on one of the parent companies, namely EI DuPont, and of holding jointly and severally liable for the payment of a part of the amount of that fine the other parent company, namely the applicant, does not appear to be the most appropriate choice in the light of the Commission’s intention of applying also a multiplier for deterrence to only the applicant, the Commission, in rectifying the decision of 5 December 2007, did not manifestly exceed its discretion in relation to the setting of fines. 181 Lastly, it should be recalled that it is true that the power of unlimited jurisdiction conferred on the General Court in competition matters by Article 31 of Regulation No 1/2003 in accordance with Article 229 EC authorises that court, beyond a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend the amount of the fine (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86 and the case-law cited). However, in the present case, the Court takes the view that there is no reason to reduce the amount of the fine under that power. 182 It follows that the second plea must be rejected. 183 It follows from all of the foregoing that the action must be dismissed in its entirety. Costs 184 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, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders The Dow Chemical Company to pay the costs. Dittrich Wiszniewska-Białecka Prek Delivered in open court in Luxembourg on 2 February 2012. [Signatures] Table of contents Background to the dispute The applicant and the product concerned The procedure before the Commission The contested decision Procedure and forms of order sought by the parties Law The first plea, alleging that the Commission made manifest errors of assessment of the facts and errors of law in concluding that the applicant had participated in the infringement committed by DDE or in holding it liable for that infringement Wording of the contested decision Arguments of the parties – The first part, alleging a manifest error of assessment of the facts and an error of law and breach of the rights of the defence as regards the applicant’s awareness of the cartel – Second part, alleging manifest error of assessment of the facts and an error of law as concerns the imputation of the infringement to the applicant on the ground of its involvement in the Members’ Committee Findings of the Court – Second part, alleging manifest error of assessment of the facts and an error of law as concerns the imputation of the infringement to the applicant on the ground of its involvement in the Members’ Committee – The first part, alleging a manifest error of assessment of the facts and an error of law and breach of the rights of the defence as regards the applicant’s awareness of the existence of the cartel Second plea: in the alternative, incorrect determination of the amount of the fine imposed on the applicant Wording of the contested decision Arguments of the parties – First part, concerning the application of the multiplier in respect of the duration of the infringement – Second part, relating to the specific increase applied in order to ensure that the fines would be sufficiently deterrent – The third part, relating to the reduction of the fine under the 2002 Leniency Notice Findings of the Court – First part, concerning the application of the multiplier in respect of the duration of the infringement – The second part, concerning the specific increase applied in order to ensure that the fines would be sufficiently deterrent – The third part, concerning the reduction of the fine under the 2002 Leniency Notice – The amending decision of 23 June 2008 Costs * Language of the case: English. 1 Confidential information omitted.