Judgment — ECLI:EU:T:2012:672
Date: 2012-12-12
Language of the case: French
Court formation: Third Chamber
Subject matter: Competition;Concentrations between undertakings
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Belgium

summary manner, but sufficiently in the light of the other factors taken into account, cannot in themselves be regarded as constituting a reversal of the burden of proof. 150 It follows from the foregoing that the applicant has also failed to establish that the Commission had erred in taking into account the applicant’s acquisition of EDF’s industrial role and its central role in the operational management of CNR. 151 The complaint alleging an error of assessment with respect to the factor based on the respective industrial and commercial roles of the applicant and EDF in CNR during the period 2004 to 2006 must therefore be rejected in its entirety. – The complaint alleging an error of assessment with respect to the factor based on the statements of the managers of CNR, the applicant and Suez 152 This complaint concerns the fifth factor identified by the Commission in order to establish that there was a lasting change of control over CNR in favour of the applicant in December 2003 (paragraph 26 above). 153 At recitals 127 to 158 to the contested decision, the Commission mentions, under the heading ‘[s]ince 2004 CNR has been regarded de facto as forming part of the Suez group both by the managers of CNR and by the managers of Suez’, several internal CNR and Suez group documents, including minutes of the management board and the supervisory board, which reveal that as early as 2004 CNR was part of the group so far as Suez was concerned. Also mentioned are certain references to CNR in the Suez group’s annual reports, beginning in 2003. 154 The applicant disputes the value of those statements as factors establishing that it acquired de facto control of CNR on 23 December 2003, claiming, in particular, that most of the statements in question were made after 2003. 155 The Commission contends, first, that while most of the statements cited date from 2006 and 2007, the first statement dates from the beginning of 2004 and, second, that those statements reflect the fact that the applicant had already held de facto control of CNR since the end of 2003. 156 It should be made clear, first of all, that, in so far as examination of the other complaints raised in the context of the second plea confirms to the requisite legal standard the Commission’s finding that the applicant acquired de facto sole control of CNR on 23 December 2003 (paragraphs 22 to 151 above), this complaint is ineffective. 157 Next, the fact that the Commission relies in the contested decision on statements made after 23 December 2003 is not in itself problematic. The Commission correctly observes, moreover, that the applicant does not call into question as such the statements on which the Commission relies in the contested decision. While such statements do not suffice to establish that it was highly likely at the end of 2003 that the applicant would be in a situation of de facto control, they are none the less capable of confirming the date of the beginning of the infringement as revealed by matters pre-dating or contemporaneous with the infringement. Furthermore, subsequent events may be indicative of the continuous nature of the infringement. In that regard, it is because the applicant notified the concentration to it only during 2007 that the Commission was in a position to mention events after the end of 2003. 158 It is true that the applicant is correct to observe that none of the statements on which the Commission relies in the contested decision mentions, even implicitly, an acquisition of de facto control between 2003 and 2007. 159 However, the Commission correctly observes that the mention in 2004, in the context of a meeting of CNR’s management board on 19 March 2004, of the ‘group point of view’ or of ‘a subsidiary of a large industrial group’ does not correspond to the situation of companies having merely an ‘ongoing commercial partnership’. 160 The fact none the less remains that, apart from that example, most of the examples to which the Commission refers date from 2006 and 2007 and that the statement of the Government commissioner at a meeting of the supervisory board on 13 December 2007, mentioning that ‘responsibilities are [to be] clarified within the configuration constituted by Suez/Electrabel on one side and CNR on the other, so that CNR’s role in the future would be clearly defined’, mentioned at recital 152 to the contested decision, might support the applicant’s argument that control was acquired only from 2007. 161 Consequently, given a certain ambiguity in the words used, those statements can serve only as a secondary factor to show that the acquisition of de facto sole control came about in December 2003 rather than in 2007. 162 It must be observed, however, that the evidence on which the applicant relies does not contradict the Commission’s argument either. Thus, as the Commission correctly asserts, the phrase stating that CNR ‘will henceforth occupy an exemplary place within Suez’, made by the chairman of CNR’s supervisory board at the general meeting held on 28 June 2007, may mean that CNR had only recently become part of the Suez group or, on the contrary, that it had done so at an earlier stage. 163 As regards the statement made by the Government commissioner at the meeting of the supervisory board on 13 December 2007, a date which the applicant incorrectly gave as 5 July 2007 in the administrative procedure and which is mentioned at paragraph 160 above, the Commission correctly states at recital 154 to the contested decision that that statement may be read as referring to a clarification of responsibilities, which does not allow any conclusions to be drawn concerning the date on which the applicant acquired de facto control over CNR. 164 Nor, last, does the applicant call into question certain references to CNR noted by the Commission in the annual reports of the Suez group and mentioned at recitals 155 to 158 to the contested decision, although it had disputed the relevance of those references during the administrative procedure. 165 In those circumstances, the complaint alleging errors affecting the factor based on the statements of the managers of CNR, the applicant and Suez must be rejected. – The complaint alleging an error of assessment with respect to the factor based on the existence of a preferential right in favour of the applicant 166 This complaint relates to the sixth factor identified by the Commission in order to establish that there was a lasting change of control over CNR in favour of the applicant on 23 December 2003 (paragraph 26 above). 167 At recitals 159 to 164 to the contested decision the Commission mentions the fact that the applicant had already acquired in 2003, under the Agreement (paragraph 7 above), a right of preferential subscription to CNR’s other shares in the event that the provision of the Murcef Law requiring that public entities hold more than 50% of CNR’s capital should be repealed. It is stated at recital 163 that, in such a case, the Agreement allows the applicant to prevent another private shareholder from being able to acquire sole control of CNR on a durable basis. The applicant is thus assured of having such control, either de facto, in the context of the Murcef Law, or de lege should that law be repealed. The Commission maintains at recital 164 that this is an element of assessment which, taken with other considerations, may lead to the conclusion that there is sole control, in accordance with the Notice on the concept of concentration. 168 The applicant maintains that, under the Consolidated Jurisdictional Notice, a purchase option can never in itself confer sole control, but may only in exceptional circumstances constitute an element to be taken with other elements in order to establish the existence of control, and emphasises that in the present case the existence of a preferential right of subscription cannot be taken into consideration in the light of the definition of exceptional circumstances in the Commission Decision of 7 March 1994 declaring a concentration to be compatible with the common market (Case IV/M.397 — Ford/Hertz) (‘the Ford/Hertz Decision’). 169 The Commission contends that it has never claimed that in the present case the preferential right in itself conferred control. As that element is to be taken with other elements, it is not appropriate to dispute the fact that it was taken into consideration. 170 As already observed at paragraph 40 above, if it is accepted that the acquisition of de facto sole control occurred on 23 December 2003, the regulation applicable in the present case is Regulation No 4064/89, the application of which formed the subject-matter of the Notice on the concept of concentration, and not Regulation No 139/2004, to which the Consolidated Jurisdictional Notice applies. Point 15 of the Notice on the concept of concentration reads as follows: ‘An option to purchase or convert shares cannot in itself confer sole control unless the option will be exercised in the near future according to legally binding agreements. However, the likely exercise of such an option can be taken into account as an additional element which, together with other elements, may lead to the conclusion that there is sole control.’ 171 Even if, unlike in point 60 of the Consolidated Jurisdictional Notice, those provisions do not expressly use the words ‘in exceptional circumstances’, the Commission concedes at recital 162 to the contested decision that the rule is substantially the same in the two notices. 172 It should be noted, first of all, that the applicant does not dispute the rules applicable to the right of subscription which is granted to it under the Agreement, as described in the contested decision. 173 Furthermore, as the Commission correctly maintains, the argument which the applicant derives from the Ford/Hertz Decision cannot succeed. Apart from the fact that, in accordance with the case-law referred to at paragraph 63 above, neither the Commission nor, a fortiori, the Court is bound in this case by the findings of fact and the assessments contained in a previous decision of the Commission, that case is different from the facts of the present case. In the case giving rise to the Ford/Hertz Decision, the Commission found that the fact that Ford held 49% of the voting rights and a minority representation on Hertz’s management board did not confer on it a situation of control, as it was granted no right of veto in relation to essential decisions. It considered, however, that the fact that Ford had a preferential right of subscription which could be exercised at its discretion alone, without any precondition and at any time, thus giving it at very short notice the possibility of taking control of Hertz’s management board, was a circumstance which conferred de facto control on Ford. The preferential right of subscription was therefore a major factor in that case on which the existence of de facto sole control could be concluded. 174 In the present case, the applicant is correct to point out that its preferential right is subject, in particular, to the amendment of the Murcef Law. However, the Commission did not infer de facto sole control from the preferential right, but only took that right into account as an additional factor. That is clear from recital 163 to the contested decision, where the Commission states that the applicant was assured of having sole control of CNR on a lasting basis ‘either de facto in the context of the Murcef Law or de lege if that law [were] repealed’. The existence of the preferential right, the exercise of which depends on the Murcef Law being repealed, therefore constitutes a secondary factor in the Commission’s reasoning, as the existence of de facto sole control was inferred from other circumstances. 175 The Commission’s approach is, moreover, consistent with the Notice on the concept of concentration, from which it follows that de facto sole control by a minority shareholder may be inferred from the structure of voting rights or the right to manage the activities of the company in question and to determine its business policy (point 14), while the existence of a preferential right of subscription is not a necessary additional condition, but may constitute an additional element, like any other element of fact (point 15). Furthermore, it may be observed, for the sake of completeness, that the fact that the applicant held 47.92% of the voting rights, the composition of the remaining shareholders and the applicant’s position of strength on the management board may be regarded as exceptional circumstances that justify the existence of a preferential right to subscription being taken into account. In any event, the absence of the factor based on the existence of a preferential right of subscription in favour of the applicant would not be of such a kind as to alter the conclusion that there was de facto control based, in particular, on the structure of the voting rights in general meeting and the applicant’s position of strength on that body and also on the management board. 176 The complaint must therefore be rejected, as must the second plea in its entirety. First plea, alleging infringement of Article 7(1) of Regulation No 4064/89 and infringement of Article 253 EC in that the Commission did not correctly characterise the infringement and in that the contested decision contains a contradiction in the grounds 177 The applicant maintains that the contested decision is vitiated by a contradiction between the grounds and the operative part, resulting in failure to state reasons, as required by Article 253 EC. The applicant claims, in essence, that the grounds of the contested decision do not substantiate the finding in the operative part that there was an infringement of Article 7(1) of Regulation No 4064/89 but permit a finding of an infringement of Article 4(1) of that regulation. 178 The Commission disputes the applicant’s arguments. It contends, in essence, that the contested decision contains no contradiction. 179 It should be borne in mind that the obligation to state reasons laid down in Article 253 EC is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67; Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35; and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 146). 180 It also follows from the case-law that the statement of reasons required under Article 253 EC must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to carry out its 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 Commission v Sytraval and Brink’s France, paragraph 179 above, paragraph 63 and the case-law cited, and Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraph 58). 181 Furthermore, the obligation to state reasons laid down in Article 253 EC requires that the reasons on which a decision is based be clear and unequivocal. Thus the reasoning on which a measure is based must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (Elf Aquitaine v Commission, paragraph 179 above, paragraph 151). 182 In the present case, as the Commission correctly claims, the infringement which the applicant is found to have committed is characterised without ambiguity, in various parts of the contested decision, in particular, apart from in Article 1 of the operative part, at recitals 40 to 173, 174 to 179, 191, 192, 205, 206, 211, 212 and 223, as consisting in the premature putting into effect of a concentration, in breach of Article 7(1) of Regulation No 4064/89. 183 It follows from the examination of the second plea above that the Commission explained, especially at recitals 40 to 173 to the contested decision, both the legal principles and the factual considerations on which it based the finding that the applicant had implemented a concentration on 23 December 2003 without having notified it to the Commission and without having obtained authorisation and that, as regards the substance, its analysis in that regard must be upheld. 184 In the first place, in order to establish alleged contradictions in the contested decision, the applicant refers to recital 59, which states that: ‘… [the applicant] should have brought the matter to the Commission’s attention by December 2003 at the latest, when it acquired further shares from EDF that brought its total share to 49.95% of CNR’s capital and to 47.92% of the voting rights; it might have done so by consultation, as it did in 2007. As in 2007, the Commission would then have applied the established decision-making practice to confirm that [the applicant] was acquiring sole control of CNR and was thus obliged to notify the transaction.’ 185 In the applicant’s submission, that recital clearly reveals that the Commission takes issue with it for failure to notify or, at least, for being late in notifying the transaction, in contradiction to Article 1 of the operative part, which refers to the infringement consisting in putting into effect a concentration before it was notified. As the Commission correctly submits, however, the fact that it stated at that recital to the contested decision that the applicant ought to have contacted it earlier does not mean that the breach of the obligation to notify the concentration is at the basis of the infringement found, for which a fine was imposed, since a breach of the obligation to suspend the concentration may exist, as is apparent from the words of Article 7(1) of Regulation No 4064/89, whether or not the concentration was notified. 186 In the second place, the applicant claims that certain elements of assessment in the contested decision relating to the duration of the infringement confirm its contradictory nature. Thus, in characterising the infringement as having begun on the date on which the applicant acquired the shares held by EDF, 23 December 2003, and as having continued until the date of pre-notification, 9 August 2007, the Commission defined an infringement of Article 4(1) of Regulation No 4064/89, which concerns failure to notify. In the applicant’s submission, if the Commission had wished to characterise an infringement of Article 7(1) of that regulation, on the putting into effect of a concentration before its notification, it ought to have taken into account the existence of an infringement as from the actual exercise of the voting rights, that is to say, at the general meeting held on 29 June 2004, until the date on which the transaction was authorised by the Commission, that is to say, 29 April 2008. The dates of 23 December 2003 and 9 August 2007 are irrelevant for the purpose of the characterisation of the putting into effect of a concentration before it has been notified. The Commission implicitly acknowledged that fact when it asserted that the limitation period ran only from the date on which the infringement came to an end, namely 29 April 2008. 187 In that regard, as the Commission observes, as the obligation to notify laid down in Article 4 of Regulation No 4064/89 arises at a particular time, the fact that it sought in the contested decision to establish the duration of the infringement implies that it was not attempting to establish, or in any event not solely to establish, a failure to notify. 188 As for the applicant’s argument that the Commission could not place the beginning of the infringement at the end of December 2003, as the putting into effect of a concentration before it has been notified can take place only when the voting rights are effectively exercised, which did not occur until the general meeting of 29 June 2004, Article 7(1) of Regulation No 4064/89 refers to the prohibition on putting a concentration into effect before it has been notified or approved. 189 Article 3(1) and (3) of Regulation No 4064/89 (paragraph 24 above) define a concentration as a change of control conferring the possibility of exercising decisive influence on the activity of the undertaking concerned and therefore the acquisition of control in the formal sense and not the effective exercise of such control. That is confirmed, moreover, in the second paragraph of point 9 of the Notice on the concept of concentration. Indeed, according to the second sentence of that provision, Regulation No 4064/89 ‘clearly defines control as having “the possibility of exercising decisive influence” rather than the actual exercise of such influence’. The applicant’s argument cannot therefore succeed. As to whether, as the Commission claims, failure to notify was established on a date before 23 December 2003, it is of no relevance to the examination of this plea. 190 As for the end of the infringement period, in respect of which the applicant asserts that the fact that it was fixed at the date of pre-notification, that is to say, 9 August 2007, implies that the infringement in question was indeed failure to notify, it should be observed that the Commission set out the reasons for its approach at recital 211 et seq. to the contested decision, where it explains that once a concentration has been implemented, and for so long as it continues to be implemented, a breach of Article 7 of Regulation No 4064/89 can end only when the Commission authorises the concentration or, as the case may be, when it grants exemption from the obligation to suspend the concentration. After stating at recitals 212 to 214 that a long time had elapsed between the date on which sole control was found to have been acquired, namely 23 December 2003, and the authorisation decision, the Commission states, at recital 215, that, in the exercise of its discretion and without prejudice to its general position of principle, it will not take account of the period covering the discussions and examination of the concentration following its pre-notification on 9 August 2007, the date which it therefore took as the end of the infringement. 191 It is clear from the considerations set out in the preceding paragraph that it cannot be inferred from the fact that the Commission set the date of the end of the infringement at the date on which the concentration was pre-notified that the Commission was thus characterising a breach of the obligation to notify. The argument cannot therefore succeed. 192 In the third place, while the applicant claims that, once the Commission was contacted about the case in the summer of 2007, it did not request that the applicant suspend the effects of the putting into effect of the transaction before it had been notified, which confirms that the Commission did not find an infringement of Article 7(1) of Regulation No 4064/89, the Court accepts the Commission’s analysis, according to which that circumstance has no impact on the legal characterisation of the infringement. 193 Indeed, although the applicant claims that the Commission has erred in law in asserting that such an approach is not provided for in Regulation No 4064/89, since, in the summer of 2007, Regulation No 139/2004 was already applicable — which, moreover, is apparent from the authorisation decision, which states that that decision is ‘taken on the basis of Article 6(1)[(b)] of Regulation No 139/2004’ — as the Commission emphasises, the regulation applicable in the present case had not yet been determined when it had authorised the concentration, since the question of the date on which de facto sole control had been acquired remained open. It is true that the authorisation decision declared the concentration compatible with the common market on the basis of Regulation No 139/2004, but the Commission made explicitly clear at recital 18 that, for the purposes of the authorisation decision, the question of the exact date of acquisition of sole control could remain open in so far as it had no impact on the competitive analysis of the transaction. Such an approach must be upheld, since, as observed at paragraph 40 above, it follows from Article 26(2) of Regulation No 139/2004 that Regulation No 4064/89 was to continue to apply to any concentration which had been the subject of an agreement or announcement or where control had been acquired within the meaning of Article 4(1) of that regulation before 1 May 2004. 194 Furthermore, as the Commission observes, only Regulation No 139/2004 expressly provides in Article 8(5) that the Commission may take appropriate provisional measures. Regulation No 4064/89 did not provide for such possibilities. In any event, even in the context of Regulation No 139/2004, the Commission merely has an option to order such a measure. In those circumstances, no conclusion can be drawn in the present case, so far as the question of the characterisation of the infringement is concerned, from the fact that the Commission did not request that the transaction in question be suspended. 195 In the fourth place, the applicant maintains that the inconsistency in the Commission’s reasoning was already apparent in the statement of objections; that the applicant referred to a problem in the characterisation of the infringement in its reply to that statement of objections; and that the Commission did not explain in the contested decision why it had rejected the applicant’s arguments. However, it does not appear from the reply to the statement of objections that the applicant raised such arguments. 196 It is true that the applicant’s reply to the statement of objections contains a section on the ‘lack of a legal characterisation of the infringement and the failure to prove an infringement in this instance’, in which the applicant emphasises that the statement of objections does not show the main element of the infringement which the Commission claims to find in the applicant’s case, namely the existence of a concentration within the meaning of Regulation No 4064/89 on 23 December 2003. However, although the applicant thus disputes the lack of legal characterisation of the facts by reference to Article 7(1) of Regulation No 4064/89, it does not assert that the facts found by the Commission constituted an infringement of Article 4(1) of that regulation. Accordingly, in that document, contrary to the applicant’s contention, the applicant does not emphasise that the Commission characterised a different infringement from that which it claimed to find. In any event, the applicant qualifies its argument in the reply, stating that it denied having committed any infringement at all. Thus, it maintains that it cannot have asserted in its reply to the statement of objections that it considered that an infringement was established under Article 4 of Regulation No 4064/89 without contradicting itself, since it has always maintained that it was not guilty of any infringement. The applicant’s complaint that it raised in its reply to the statement of objections a problem in the characterisation of the infringement which the Commission failed to examine in the contested decision is therefore unfounded. 197 It follows that the contested decision set out to the requisite legal standard the reasons on which the applicant was found to have committed an infringement of Article 7(1) of Regulation No 4064/89 and that it is not vitiated on that point by any contradiction in the grounds. 198 The first plea must therefore be rejected, as must the principal claims, seeking annulment of the contested decision. 2. The alternative claims, seeking annulment of the fine or a reduction of the amount of the fine Third plea, alleging infringement of Article 1 of Regulation No 2988/74, in that the Commission’s power to impose a penalty on the applicant was time-barred 199 In the context of this plea, the applicant claims that the Commission’s power to impose a penalty on it was time-barred, since the infringement was of a procedural nature and it was an instantaneous infringement. In the applicant’s submission, the limitation period of three years applicable in the present case in accordance with Article 1(1)(a) of Regulation No 2988/74 had elapsed, since the beginning of the infringement had been established as 23 December 2003 and the first act capable of effectively interrupting the running of time occurred on 17 June 2008, or five years after the infringement began. 200 The Commission denies that its power to impose a penalty was time-barred. 201 It is apparent from recitals 179 to 183 to the contested decision that the Commission considered that under Article 1(1) of Regulation No 2988/74 the limitation period for an infringement such as that at issue in the present case, relating to the implementation of a concentration in breach of Article 7(1) of Regulation No 4064/89, which concerned not a simple failure to notify but conduct which gave rise to a structural change in the conditions of competition, was five years. The Commission also observes that the first request for information sent to the applicant on 17 June 2008, for the purpose of the investigation of the infringement, and then the statement of objections of 17 December 2008 interrupted the limitation period, in accordance with Article 2 of Regulation No 2988/74. 202 The plea concerns, in essence, the Commission’s application of Article 1 of Regulation No 2988/74. That provision reads as follows: ‘1. The power of the Commission to impose fines or penalties for infringements of the rules of the European Economic Community relating to transport or competition shall be subject to the following limitation periods: (a) three years in the case of infringements of provisions concerning applications or notifications of undertakings or associations of undertakings, requests for information, or the carrying-out of investigations; (b) five years in the case of all other infringements. 2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.’ 203 It must be observed that the applicant’s arguments are identical in part to those put forward in the context of the first plea, in that that plea alleged that the infringement ought to have been characterised as a failure to notify contrary to Article 4 of Regulation No 4064/89 rather than as a breach of the obligation to suspend the concentration laid down in Article 7(1) of that regulation. It follows from the examination of the first and second pleas, however, that the Commission, without contradicting itself, correctly characterised the infringement as an infringement of Article 7(1) of that regulation which commenced on 23 December 2003. 204 In the first place, the applicant claims, however, that even if the infringement were an infringement of Article 7(1) of Regulation No 4064/89, it would none the less be necessary to apply a limitation period of three years, in accordance with Article 1(1)(a) of Regulation No 2988/74, since the essential criterion that determines the unlawful nature of the implementation of a concentration depends primarily on whether the transaction was notified in advance. The contested decision contains a number of references to the lack of notification, showing that the Commission takes issue with the applicant for having implemented a concentration not only before it was authorised but also before it was notified. 205 That analysis must be rejected. As the Commission correctly asserts, and as observed in the context of the examination of the first plea, it follows from Article 7(1) of Regulation No 4064/89 that there is an infringement of that provision if a concentration having a Community dimension is put into effect before being notified or before having been declared compatible with the common market; notification as such is not decisive for the establishment of the reality of the concentration or sufficient to put an end to it. 206 In that regard, the Commission is correct to recall that the distinction which gives rise to two different limitation periods in Regulation No 2988/74 also relates to the nature of the infringement, a short period of three years being provided for in Article 1(1)(a) of that regulation for infringements relating to applications or notifications of undertakings or associations of undertakings, requests for information, or the carrying-out of investigations, and a longer period of five years being provided for in Article 1(1)(b) for other infringements. It is clear that the first category of infringements, referred to in Article 1(1)(a), concerns infringements of a formal or procedural nature. However, the implementation of a concentration before it has been notified, in breach of Article 7(1) of Regulation No 4064/89, constitutes an infringement which cannot be characterised as purely formal or procedural, since it is capable of giving rise to substantial changes of the conditions of competition, as stated at recital 182 to the contested decision. 207 As regards the applicant’s argument that the infringement relates to failure to observe the Commission’s exclusive power to carry out an ex ante control of concentrations and therefore constitutes a breach of a rule of competence, it must be observed that, even if the issue were one of competence, it none the less concerns an infringement other than those referred to in Article 1(1)(a) of Regulation No 2988/74. 208 As regards the applicant’s arguments relating to the duration of the infringement, and in particular to the date taken as the end of the infringement, as observed at paragraph 191 above in the context of the examination of the first plea, they do not in themselves constitute a relevant factor. 209 It follows that the Commission was correct to apply in the present case Article 1(1)(b) of Regulation No 2988/74 in order to take a limitation period of five years. 210 In the second place, the applicant maintains that the infringement found is an instantaneous infringement, since it was committed in a single act, the putting into effect of the concentration, and that only the result of the infringement continues. Such an analysis means that the limitation period should be calculated from 23 December 2003. In support of its argument, the applicant relies, in particular, on a distinction drawn, notably in French competition law, between permanent continuous infringements and successive continuous infringements. In the applicant’s submission, infringements in the first category are committed in a single act, even though their effects and their result are prolonged in time, so that the rules applicable to instantaneous infringement apply. The infringement at issue in the present case falls within that first category, since it was found that the infringement was committed negligently and since such a characteristic cannot apply to the second category, which presumes a repetition of the unlawful intention over a period of time. Furthermore, the applicant maintains that a different conclusion would mean that infringements of Article 7(1) of Regulation No 4064/89 would last virtually forever, as the limitation period could never elapse. 211 That argument, which concerns the application of Article 1(2) of Regulation No 2988/74, according to which time runs as from the day on which the infringement was committed, other than in the case of continuing or repeated infringements, for which time begins to run on the day on which the infringement ceases, cannot succeed. 212 Indeed, the ability to exercise decisive influence over the activity of the controlled undertaking necessarily exists in the period beginning on the date of acquisition of control and lasting until the end of control. As the Commission correctly claimed in answer to a written question from the Court requesting it to explain its argument relating to the continuous nature of the infringement, the entity which has acquired control of the undertaking continues to exercise such control in breach of the obligation to suspend the concentration arising under Article 7(1) of Regulation No 4064/89 until the time when it puts an end to the infringement by obtaining the Commission’s authorisation or by giving up control. Accordingly, the infringement lasts for so long as the control acquired in breach of Article 7(1) remains and the concentration has not been authorised by the Commission. The Commission was therefore correct to characterise the infringement as having been continuous until the date of authorisation of the concentration or, as the case may be, until such earlier date that might be taken into account in the light of the circumstances of the case. For the remainder, the Commission is right to assert that the distinction between continuous infringements and successive continuous infringements to which the applicant refers is not to be applied in EU competition law and there is no need to examine it further. 213 As for the applicant’s argument that, in those circumstances, the limitation period might run ‘forever’, it should be observed that the characterisation of an infringement such as that at issue in the present case as instantaneous cannot be defended from the aspect of enforcement policy, since in the absence of appreciable effects on the market it would be quite easy for the power to impose a penalty for such an infringement to become time-barred. 214 Last, and in any event, even if the infringement were an instantaneous infringement, meaning that the starting point of the limitation period was 23 December 2003, the limitation period, fixed at five years, as is apparent from paragraph 209 above, would have been interrupted by the request for information of 17 June 2008 and by the statement of objections of 17 December 2008, in accordance with Article 2 of Regulation No 2988/74, which provides that the limitation period in proceedings is to be interrupted by any action taken by the Commission for the purpose of the preliminary investigation or proceedings, as stated, moreover, at recital 180 to the contested decision. 215 It follows from the foregoing that the Commission’s power to impose a penalty for the infringement of Article 7(1) of Regulation No 4064/89 was not time-barred on the date of the contested decision. 216 The third plea must therefore be rejected. Fourth plea, alleging infringement of Article 14(2) of Regulation No 4064/89 and breach of the principles of proportionality, sound administration and legitimate expectations 217 In the context of the present plea, the applicant develops two parts in support of its alternative claim for annulment or reduction of the fine. In the first part, the applicant alleges a number of manifest errors of assessment and the disproportionate nature of the amount of the fine by reference to the objective of penalising the individual infringement. In the second part, the applicant claims that the fine is disproportionate by reference to the objective of deterrence and that the Commission’s competition policy lacks coherence. First part of the fourth plea, alleging manifest errors of assessment and the disproportionate nature of the amount of the fine by reference to the objective of penalising the individual infringement 218 The applicant maintains that the imposition of a fine of EUR 20 million is wholly disproportionate and unfair. Furthermore, in the first place, the applicant claims that the alleged infringement cannot be a serious infringement capable of attracting such a high fine. In the second place, the applicant maintains that the Commission’s assessment of the duration of the infringement contains manifest errors. In the third place, the applicant calls into question the Commission’s assessment of the mitigating circumstances. 219 The Commission contends that the applicant’s arguments should be rejected. It observes that the applicant does not dispute certain significant aspects of the Commission’s assessment, that it confuses the nature and the gravity of the infringement and that the grounds of the contested decision relating to the duration of the infringement and the mitigating circumstances to be taken into account are not vitiated by errors, still less by manifest errors. 220 The Commission’s analysis is to be found at recitals 184 to 227 to the contested decision. The Commission states at recital 184 to the contested decision that it took account of the nature and gravity of the infringement, in accordance with Article 14(3) of Regulation No 4064/89, and also of the duration of the infringement and of any aggravating or mitigating circumstances. 221 It should be observed at the outset that, under Article 16 of Regulation No 4064/89, the Court of Justice is to have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed. That jurisdiction empowers the Courts of the European Union, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect and by analogy, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 692). 222 It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy, which the Courts are required to raise of their own motion, such as the failure to state reasons for the contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas. 223 Before examining the applicant’s arguments concerning the factors which the Commission took into account when setting the fine, it is appropriate to analyse, first, the Commission’s preliminary arguments, whereby it alleges that its analysis of the applicant’s global resources in the contested decision has not been challenged before the Court and, second, the applicant’s reference to certain methods or principles applied in setting fines in cartel cases. 224 As regards the applicant’s global resources, they are mentioned at recitals 196, 197 and 225 to the contested decision. At recitals 196 and 197 reference is made to both its size and its ‘sufficient legal resources’. Recital 197 contains, inter alia, a list of the Community concentrations in which the applicant or the Suez group has been involved. At recital 225, moreover, the Commission states that it takes into account the need that fines be a deterrent and that in the case of an undertaking of the size of the applicant the fine must be sufficient in order to have a deterrent effect. 225 The assessments set out in the preceding paragraph are not disputed by the applicant in its action, or in any event not directly. The Commission states that those considerations played a significant role in the setting of the amount of the fine, notably in order to ensure that it was deterrent. The Commission claims, without being challenged by the applicant on that point, that the amount of EUR 20 million imposed represents only 0.42% of the legal maximum and 0.04% of the turnover achieved by Suez in 2007 (namely EUR 47.5 billion). 226 It must be noted that the amount of the fine is significantly below the legal maximum of 10% provided for in Article 14(2)(b) of Regulation No 4064/89, which provides that the Commission may impose on undertakings fines not exceeding 10% of the aggregate turnover of the undertakings concerned where, either intentionally or negligently, they put into effect a concentration in breach of Article 7(1) of that regulation. That is also true if the applicant’s turnover alone is taken into account, which was EUR 15.2 billion in 2007 and EUR 14.6 billion in 2008, including CNR. 227 As regards the applicant’s reference to certain principles or certain methods for the calculation of fines set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the new Guidelines’) and also 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 former Guidelines’), in particular with respect to the treatment of the duration of the infringement and the mitigating circumstances, the Commission correctly asserts that those measures apply only in the context of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) and Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) and that they therefore do not apply to fines imposed under Regulation No 4064/89. The applicant’s argument that the measures in question apply because they define the ‘general method for determining fines by the Commission in competition matters’ cannot therefore succeed. 228 Although parallels may no doubt be drawn with respect, in particular, to the application of the case-law on certain general principles in the field of competition law, the Commission cannot be criticised for not having followed any particular method set out in the former Guidelines or the new Guidelines when setting the amount of the fine in the present case. The framework of its analysis must be that set out in Article 14(3) of Regulation No 4064/89, which provides that, in setting the amount of a fine, regard is to be had to the nature and gravity of the infringement. Indeed, in the case of that provision, the Commission has not adopted guidelines setting out the method of calculation which it must follow when setting fines under that provision. However, it is required to reveal clearly and unequivocally in the contested decision the elements which it took into account in setting the amount of the fine. – The gravity of the infringement 229 The applicant puts forward, in essence, three arguments relating to the gravity of the infringement. 230 In that regard, it must be borne in mind at the outset that, according to settled case-law, the gravity of the infringement must be assessed in the light of numerous factors, in respect of which the Commission has a margin of discretion (see, by analogy, 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, paragraphs 240 to 242, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 43). 231 The applicant’s first argument relates to the fact that the infringement was committed negligently and that negligence cannot in any event be taken as a factor that aggravates the gravity of the infringement. The applicant claims that the Commission contradicts itself on that point in the contested decision, in such a way that the entire assessment of gravity is flawed. In the applicant’s submission, in taking the view that any infringement of Article 7(1) of Regulation No 4064/89 is by nature a serious infringement, the Commission failed to have regard, in particular, to Article 14(2) of that regulation, which distinguishes infringements committed ‘intentionally’ from those committed ‘negligently’. 232 It is clear from recitals 186 to 191 to the contested decision that the Commission regards the infringement as a serious infringement in that it undermines the effectiveness of provisions on the Community control of concentrations. The Commission states that an undertaking implementing a concentration with a Community dimension without having obtained authorisation unilaterally eludes the mandatory control for which the legislature gave the Commission sole competence and thus weakens the EU legal order. Any infringement of Article 7(1) of Regulation No 4064/89 is thus by nature, in the Commission’s view, a serious infringement. 233 The Commission claims before the Court that that approach is consistent with what the case-law teaches in respect of other prohibitions on implementation linked with prior notification and authorisation mechanisms. It refers, in particular, to State aid and to the rules on the notification of technical standards established by Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8). The Commission further submits that, given the very logic of a system of prior notification, a breach of that obligation is serious, irrespective of whether it was committed intentionally or negligently and independently of the consequences which it might have for competition. 234 In that regard, even if the rules on the notification of State aid or relating to technical standards cannot in themselves justify the reasoning set out in the contested decision, in so far as, as the applicant observes, those rules do not provide for the imposition of fines, the Commission correctly states at recital 193 to the contested decision that the fact that Regulation No 4064/89 makes provision for such heavy penalties — up to 10% of the turnover of the undertakings concerned — shows that the legislature wished to protect the system of notification and authorisation prior to the implementation of a concentration of a Community dimension. It should be noted, moreover, that Regulation No 139/2004, in Article 14(2), maintained that level of fine for infringements relating to the implementation of a concentration in breach of the obligation to suspend the concentration and, in addition, extended that heavy system of penalties to failure to notify, which under Regulation No 4064/89 had been penalised only by fines of between EUR 1 000 and EUR 50 000. 235 The Commission was therefore correct to state at recital 187 to the contested decision that, ‘[b]y making concentrations with a Community dimension conditional upon notification and prior authorisation, the Community legislature wanted to ensure that such concentrations were subject to effective control by the Commission, allowing the Commission where appropriate to prevent such concentrations from being carried out before it takes a final decision, thereby avoiding irreparable and permanent damage to competition’. The Commission was therefore able, without making an error, to characterise the infringement as serious, in view of its nature. 236 As regards the role played by negligence, it is clear from recitals 195 to 206 to the contested decision that the Commission characterised the infringement as serious and referred, moreover, to the fact that the applicant had acted negligently. In the applicant’s submission, however, an infringement committed negligently cannot be characterised as serious. 237 In that regard, it should be noted that Article 14(2) of Regulation No 4064/89 does not draw a distinction according to whether the infringement was committed intentionally or negligently, but mentions those two conditions for the imposition of a fine as alternatives (see, by analogy, with respect to Article 15(2) of Regulation No 17, order in Case C‑137/95 P SPO and Others v Commission [1996] ECR I‑1611, paragraph 56). Furthermore, infringements committed negligently are not, from the point of view of their effects on competition, less serious than those committed intentionally (see, by analogy, order in SPO and Others v Commission, paragraph 55). 238 Consequently, the Commission was entitled to consider that the infringement was serious by nature, and there is no requirement that such an infringement has to be an intentional infringement. 239 Furthermore, the fact that both the former and the new Guidelines mention negligence as a mitigating circumstance in relation to fines for infringements of Article 81 EC or Article 82 EC is irrelevant, first, in the light of the considerations set out at paragraph 227 above and, second, because the question whether the Commission ought to have taken negligence into account as a mitigating circumstance is distinct from the question whether it correctly characterised the infringement in the light of its nature and gravity. 240 Last, it must be observed that it follows from the context of the contested decision and from the grounds set out at recitals 196 to 206 to the contested decision, put forward in support of the characterisation of the applicant’s conduct as being negligent, that the Commission considers that the conduct in question was far removed from excusable error and inappropriate in the light of the circumstances, as, moreover, it submitted before the Court. 241 The Court therefore rejects the applicant’s argument that the Commission has infringed Article 14 of Regulation No 4064/89 and contradicted itself in the contested decision by characterising the infringement as serious while taking the view that the infringement was committed negligently. 242 The second argument whereby the applicant challenges the characterisation of the infringement as serious concerns the fact, acknowledged by the Commission, that there was no adverse effect on competition. The applicant observes that even infringements of Articles 81 EC and 82 EC, which by definition are those capable of causing the most serious damage to competition, are not automatically regarded as serious. As the ultimate aim of the prior control of concentrations is to prevent irreparable and permanent damage to competition, and as the Commission itself acknowledges at recital 194 to the contested decision that the actual effect on competition is a relevant criterion, its reasoning is inconsistent in that it characterises the infringement at issue as being serious when it had neither the object nor the effect of causing damage to competition. 243 That argument concerns recitals 192 to 194 to the contested decision, on the gravity of the infringement, where the Commission found that the fact that the infringement did not raise competition concerns did not affect its seriousness. 244 In that regard, the comparison of the infringement at issue with infringements of Article 81 EC or Article 82 EC must be qualified, as must the argument based on the significance, in the applicant’s submission, of the absence of effects on competition of the infringement which it is found to have committed. 245 Admittedly, the objective of the EU rules on the control of concentrations is the prevention of irreparable and permanent damage to competition, as the Commission itself acknowledges at recital 187 to the contested decision. Indeed, the first recital in the preamble to Regulation No 4064/89 refers to the objective of undistorted competition in the common market. Ultimately, the legal asset thus protected is the safeguarding of free competition within the common market, which constitutes a fundamental objective of the EU under Article 3(1)(g) EC, as is the case, moreover, for the Commission’s powers to conduct investigations and to impose sanctions with respect to infringements of Articles 81 EC and 82 EC (see, to that effect, Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 31). 246 It also follows from Regulation No 4064/89, however, that the system for the control of concentrations which it establishes is designed to allow the Commission to exercise effective control of all concentrations from the point of view of their effect on the structure of competition (seventh recital) and that the effectiveness of that system is ensured by the introduction of ex ante control of the effects of concentrations with a Community dimension. It follows from the 17th recital to and also from Article 4 and Article 7(1) of Regulation No 4064/89 that the effectiveness of that control rests on a duty for undertakings to notify such concentrations in advance and to suspend their implementation until the Commission has adopted a decision declaring them compatible with the common market. Furthermore, the limitations on the possibility of granting a derogation from the obligation to suspend the concentration laid down in Article 7 and the severity of the penalties provided for in Article 14(2)(b) of Regulation No 4064/89 in the event of a breach of that obligation confirm the fundamental importance which the legislature placed on the obligation to suspend the concentration in the context of the control of concentrations, an approach which is justified in so far as the implementation of a concentration affects the structure of the market and may render more difficult the decisions whereby the Commission seeks, where necessary, to restore effective competition. In the light of that context, the Commission is correct to maintain that the ex post analysis of the lack of effect of a concentration on the market cannot reasonably be a decisive factor for the characterisation of the gravity of the breach of the system of ex ante control. 247 That, however, does not prevent the absence of effects on the market being taken into account as a relevant factor in determining the amount of the fine, as the Commission acknowledges at recital 194 to the contested decision. The Commission is also correct to claim at the same recital that the presence of damage to competition would render the infringement even more serious. Last, it should be observed that, even though the Commission does not analyse it further, it states in the conclusion, at recital 225 to the contested decision, that it has taken account of the absence of damage to competition caused by the concentration. 248 The third argument whereby the applicant disputes the serious nature of the infringement is based on the fact that the question of de facto sole control would have required a complex factual and legal analysis in 2003. In the applicant’s submission, the Commission could therefore not invoke the allegedly foreseeable nature of such control, especially since the precedents cited in the contested decision, in particular Decision 1999/594 (paragraph 122 above) and Commission Decision 1999/459/EC of 10 February 1999 imposing fines for failing to notify and for putting into effect three concentrations in breach of Article 4 and Article 7(1) of Regulation No 4064/89 (Case IV/M.969 — A.P. Møller) (OJ 1999 L 183, p. 29), could not have been used against it. 249 The argument relates to recitals 195 to 206 to the contested decision, where the Commission found, in the context of its assessment of the gravity of the infringement, that the applicant had been negligent, on the basis of three factors, namely, first, the fact that the applicant was a large undertaking with substantial legal resources at its disposal and had been faced with EU law on concentrations on several occasions, second, the fact that the acquisition of control was foreseeable, and, third, the existence of precedents. 250 It must be emphasised at the outset, however, that, as stated at paragraphs 224 and 225 above, the applicant does not dispute the first of the three factors to which the Commission refers as the basis for its finding that the applicant has acted negligently, namely the fact that the applicant is a large undertaking with substantial legal resources at its disposal and that it has been faced with EU law on concentrations on several occasions. 251 As regards the second factor applied by the Commission, namely the foreseeability of the acquisition of control, the applicant maintains, in essence, that the question of the existence of de facto sole control in its favour during 2003 required a complex factual and legal analysis. The applicant also refers to the special nature of CNR as a general-interest limited company. 252 The Commission sets out at recital 198 et seq. to the contested decision a number of factors to substantiate its argument that, as the acquisition of control was foreseeable, the applicant committed an infringement negligently. It must be held that they are relevant factors that, in any event in conjunction with the applicant’s experience in the field of concentrations and in notification procedures, render unconvincing its argument that it cannot be criticised for negligence. 253 In particular, it was following the commitments given by EDF in the context of the authorisation of a different concentration by the Commission that the applicant entered into an agreement with EDF in June 2003 to acquire its shares in CNR. The applicant thus obtained a part of the capital and the voting rights in CNR that was almost 50%, in the context of a dispersed shareholding and of the conclusion of an agreement with CDC. Furthermore, the applicant already had two representatives out of three within the management board. In the light of its own size in terms of turnover, of the size of CNR and of the factors relating to the structure of the governance, it is wholly appropriate for the Commission to consider that the applicant was negligent in not contacting the Commission in December 2003 at the latest in order to determine whether a concentration within the meaning of competition law was actually involved. The fact that the applicant placed a different interpretation on the applicable legislative framework does not mean that that legislative framework was unclear or that the applicant could not foresee that it was taking a risk by not discussing its interpretation with the Commission in good time. 254 Admittedly, in order to commit the infringement which the applicant is found to have committed and to be penalised for having done so, it is not sufficient to have been negligent. The Commission must prove that a concentration has actually taken place, a fact which determines its competence and, where appropriate, the beginning of any breach of the obligation to suspend the concentration. However, it follows from the examination of the second plea above that the Commission established those circumstances to the requisite legal standard. 255 Furthermore, the Commission also claims, correctly, that even if the establishment of control was particularly complex, the appropriate course of conduct for the applicant, which the Commission was reasonably entitled to expect, was to contact the Commission. 256 Last, the fact that the Commission itself took a long time to determine the starting date of the infringement is irrelevant, as the length of the procedure was determined at least in part by the applicant’s failure to act promptly. 257 It follows that the argument which the applicant bases on the unforeseeable nature of the concentration must be rejected. 258 As regards the third factor applied in order to establish that the applicant acted negligently, namely the precedents referred to at recital 205 to the contested decision, in particular Decision 1999/594 (paragraph 122 above) and Decision 1999/459 (paragraph 248 above), namely the first Commission decisions imposing fines for breach of Article 4 and Article 7(1) of Regulation No 4064/89, and contrary to the applicant’s assertion, the fact that they were old decisions at the time when the infringement began reinforces the Commission’s conclusion that the applicant acted negligently. Indeed, in the light of those decisions, the applicant could not rely on the absence of decision-making practice in this field. 259 Last, as regards Commission Decision 2003/625/EC of 3 July 2001 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/JV.55 — Hutchison/RCPM/ECT) (OJ 2003 L 223, p. 1), on which the applicant relies, in which the Commission decided not to impose a fine for failure to notify a concentrative joint venture, notably on account of the particularly complex analysis of the elements of fact and of law inherent in that type of concentration, it is sufficient to observe that the circumstances of that case were different from those of the present case. That decision concerned the problem of a cooperation agreement initially notified to the Commission as a cooperative joint venture falling within the scope of Regulation No 17, which the Commission none the less subsequently characterised as a concentrative joint venture. The decision not to impose a fine in that case was therefore taken in a wholly special context. Furthermore, the Commission correctly observes that in any event its previous practice in taking decisions does not serve as a legal framework for the fines imposed in competition matters (see, by analogy, Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 292). 260 It follows that the three arguments which the applicant puts forward in order to dispute the gravity of the infringement must be rejected. – The duration of the infringement 261 At recitals 207 to 217 to the contested decision the Commission found that the period to be taken into consideration for the purpose of setting the fine ran from 23 December 2003 until 9 August 2007, or 3 years, 7 months and 17 days, which was described as a ‘very long’ time. 262 In the applicant’s submission, in taking the view that a period of 3 years, 7 months and 17 days is considerable having regard to the shorter period found in Decision 1999/459 (paragraph 248 above), the Commission does not comply with its own practice of regarding much more serious infringements of longer duration as being of average duration. Nor does it comply with the former Guidelines, according to which infringements of between one and five years are of average duration. Furthermore, in observing at recital 217 to the contested decision that the risk of prejudice to the consumer increases with the duration of the infringement, the Commission also erred, since it expressly acknowledged that the infringement established had caused no damage to competition or to consumers. 263 The Commission disputes the applicant’s arguments. 264 First, it must be observed that the argument which the applicant puts forward in the context of this part of the plea does not refer to the calculation of the duration of the infringement as such but is limited to challenging the characterisation of the duration established by the Commission as being ‘very long’ and also to disputing the relevance of taking the duration of the infringement into account in the present case. 265 Second, as already stated at paragraph 227 above, the Commission is correct to dispute the relevance of the former Guidelines in the present case. It also rightly observes that an infringement consisting in the implementation of a concentration before it has been notified is likely to last for a shorter period than a secret cartel, so that parallels between the assessment of the duration of infringements by reference to those different types of infringements seem to be of little relevance in any event. 266 Third, the applicant does not deny that the duration of the infringement in the present case was much longer than that established in Decision 1999/459 (paragraph 248 above). The Commission was therefore entitled to cite that decision at recital 217 to the contested decision in support of the characterisation of duration in the present case. 267 Fourth, the general assertion at recital 217 to the contested decision that the risk of prejudice to the consumer increases with the duration of the infringement is not contradictory. As the Commission correctly states, it thus merely recalled that the risk of damage to competition increased when an improper situation was prolonged and that, in the case of a breach of the obligation to suspend a concentration, in the light of what was set out at paragraph 246 above, that risk had to be assessed initially without consideration of the effects of the transaction in the future. Contrary to the applicant’s contention, the duration of the infringement is relevant in the present case. As the Commission correctly claimed in answer to a written question put by the Court, where an infringement was defined as the implementation of an unlawful act or activity, it was lawful to take account of the scope of the act or activity in question, and also of the duration during which the activity was pursued even though those circumstances related to the period after the time when the infringement was committed. 268 In those circumstances, the applicant has not established that the Commission’s assessment of the duration of the infringement was flawed. – Mitigating circumstances 269 As may be seen from recitals 218 to 224 to the contested decision, the Commission took into account as mitigating circumstances the fact that the applicant contacted the Commission on its own initiative, also noting that it had done so only three and a half years after it had acquired EDF’s shareholding, and also the applicant’s cooperation throughout the notification procedure and afterwards, while none the less pointing out that the pre-notification period had been long. As regards the non-concealment of the shareholding in CNR during the period 2004 to 2007, the Commission considers that that cannot constitute a mitigating circumstance and that the fact that it did not investigate that aspect did not create a presumption of legality in the applicant’s favour. At most, non-concealment might mean that the applicant believed in good faith that it was not required to notify the transaction. The Commission found no aggravating circumstances. 270 The applicant observes that both the former Guidelines and the new Guidelines stipulate that the Commission must take mitigating circumstances into account when determining the amount of the fine. Apart from the failure to take negligence into account as a mitigating circumstance, it calls into question the fact that the Commission refused to regard non-concealment as such a circumstance on the ground that it had not investigated that aspect. In so doing, the Commission made an error of law by confusing the concepts of mitigating circumstance and presumption of legality. 271 The Commission disputes the applicant’s arguments. 272 It must be stated that the Commission observes, again rightly, that the approach set out in the former Guidelines and the new Guidelines is not decisive, for the reasons stated at paragraph 227 above. Furthermore, the Commission has a margin of discretion as to whether or not to take certain factors, such as non-concealment of the acquisition or negligence, into account as mitigating circumstances. 273 As regards, in particular, the fact that negligence was not taken into account as a mitigating circumstance, it has already been considered above that the Commission had not erred in taking negligence into account in characterising the infringement as serious. Furthermore, as the Commission again emphasised at the hearing, the infringement consisting in the implementation of a concentration before it has been notified is an example of an infringement where intent is difficult to prove. 274 As regards the fact that negligence was taken to be a mitigating circumstance in Decision 1999/594 (paragraph 122 above), but not in the present case, it must be borne in mind that the fact that in certain cases the Commission has taken into consideration, in its previous practice in taking decisions, certain measures as mitigating circumstances does not mean that it is under an obligation to do likewise in the present case, even though the Commission is required to observe the principle of equal treatment, which is a general principle of law under which it cannot treat comparable situations differently or different situations in the same way, unless such treatment is objectively justified (see, by analogy, judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 205 and the case-law cited). One factor that clearly distinguishes Decision 1999/594 from the present case is that that decision was the first to be adopted by the Commission under Article 14 of Regulation No 4064/89. In any event, the Commission cannot therefore be required to take the same approach in the present case. 275 Furthermore, as discussed at paragraphs 240 and 248 to 259 above, the Commission puts forward a number of arguments in the contested decision from which it is apparent that the negligence on the applicant’s part was conduct that was far removed from excusable error and was inappropriate in the circumstances. 276 The Commission could therefore legitimately and lawfully consider that the fact that the infringement had been committed negligently should not be reflected in a reduction of the amount of the fine. 277 Furthermore, if the Commission refused to take into account as a mitigating circumstance the applicant’s non-concealment of its shareholding in CNR, on the ground, in essence, that, as it had not investigated that aspect, it could not ‘create a presumption of legality’ in the applicant’s favour, such an analysis must be confirmed. Indeed, the Commission thus correctly claimed that concealment would constitute an element of intent which could have justified an increase of the amount of the fine. The fact that the Commission considered in Decision 2003/625 that non-concealment of the infringement could lead to the non-imposition of a fine is irrelevant, since, as already stated at paragraph 259 above, the factual circumstances of the case in which that decision was adopted were different. The Commission correctly observes that that case concerned a transaction which had initially been notified to it for the purposes of obtaining an exemption, as a cooperation agreement, but which it had subsequently characterised as a concentrative joint venture. 278 It follows that the applicant has not established that the Commission exceeded its discretion in its treatment of the mitigating circumstances. – The proportionate nature of the fine 279 The principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 96, and Prym and Prym Consumer v Commission, paragraph 274 above, paragraph 223). It follows that fines must not be disproportionate to the aims pursued, that is to say, to compliance with the competition rules, and that the amount of the fine imposed on an undertaking for an infringement of competition law must be proportionate to the infringement, viewed as a whole, account being taken, in particular, of the gravity of the infringement (see Prym and Prym Consumer v Commission, paragraph 274 above, paragraph 224 and the case-law cited). 280 In that regard, it must be borne in mind that, independently of the question whether the infringement penalised was committed negligently and had no effect on competition, it was a serious infringement, jeopardising the effectiveness of the Commission’s control of concentrations of a Community dimension, and of very long duration. 281 Furthermore, the negligence on the applicant’s part constituted conduct far removed from excusable error and was inappropriate when the circumstances were taken into account. 282 Moreover, in determining the amounts of fines, the Commission is entitled to take into account the need to ensure that fines have a sufficient deterrent effect (see, to that effect and by analogy, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 108, and Case T‑304/94 Europa Carton v Commission [1998] ECR II‑869, paragraph 89). Furthermore, the link between, on the one hand, undertakings’ size and global resources and, on the other, the need to ensure that a fine has a deterrent effect cannot be denied. Accordingly, when the Commission calculates the amount of the fine it may take into consideration, inter alia, the size and the economic power of the undertaking concerned (see, to that effect and by analogy, Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 112 and the case-law cited). As stated at paragraphs 225 and 226 above, the amount of EUR 20 million corresponds to only around 0.04% of the Suez group’s turnover in 2007 (EUR 47.5 billion), that group being the undertaking concerned by the concentration within the meaning of Article 14(2) of Regulation No 4064/89, because it acquired, through the applicant, de facto sole control of CNR, and to around 0.13% of the applicant’s consolidated turnover in 2007 (EUR 15.2 billion in 2007 and EUR 14.6 billion in 2008, including CNR’s turnover). 283 In the light of all those circumstances and, in particular, of the fact that the amount of the fine, EUR 20 million, albeit high, is quite clearly at the lower end of the scale of the amounts that might have been imposed given the upper limit of 10% of the turnover of the undertaking concerned provided for in Article 14(2) of Regulation No 4064/89, that amount does not seem disproportionate to the aim pursued, namely to protect the system of prior notification and approval of the putting into effect of a concentration of a Community dimension, and is proportionate to the infringement assessed as a whole. 284 The applicant claims, however, that the disproportionate nature of the fine is established, notably by reference to the substantially lower fines imposed in Decisions 1999/594 (paragraph 122 above) and 1999/459 (paragraph 248 above), or indeed the absence of a fine in Decision 2003/625 or in Commission Decision 2003/754/EC of 26 June 2002 declaring a merger to be compatible with the common market and the EEA Agreement (Case COMP/M.2650 — Haniel/Cementbouw/JV) (OJ 2003 L 282, p. 1). As regards the decision in this last case, as that taken in the case in which Decision 2003/625, already referred to at paragraph 259 above, was adopted, the factual circumstances involved were significantly different from those of the present case. Indeed, whereas the parties concerned had initially relied on the assessment of the Netherlands competition authority, which considered that the transaction in question was not a concentration, the Commission subsequently considered that it was a concentration of a Community dimension which ought to have been notified to it. 285 As regards the fines imposed in the cases in which Decisions 1999/594 (paragraph 122 above) and 1999/459 (paragraph 248 above) were adopted, which were EUR 33 000 and EUR 219 000 respectively, there is indeed a very wide gap between those amounts and the amount of EUR 20 million imposed in the present case. However, the Commission rightly claims that those precedents date from a much earlier stage in the application of Article 14 of Regulation No 4064/89, a fact which, moreover, is mentioned in those decisions. In addition, both decisions imposed part of the fine for failure to notify and a larger part for infringement of the obligation to suspend the concentration, making clear that those amounts took account of the specific circumstances of the cases and were without prejudice to subsequent cases involving the application of Article 14. 286 In any event, as already recalled above, the Commission’s previous practice in taking decisions does not serve as a legal framework for fines imposed in competition matters (see, by analogy, Michelin v Commission, paragraph 259 above, paragraph 292). Furthermore, the fact that in the past the Commission has applied fines of a particular level for certain types of infringements does not mean that it is precluded from raising that level within the limits indicated in Regulation No 4064/89 if that is necessary to ensure the implementation of EU competition policy. Indeed, the proper application of the EU competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy (see, by analogy, Dansk Rørindustri and Others v Commission, paragraph 230 above, paragraph 169 and the case-law cited). 287 The first part of the fourth plea must therefore be rejected. Second part of the fourth plea, alleging that the fine is disproportionate by reference to the objective of deterrence and that the Commission’s competition policy lacks coherence 288 The applicant alleges, first, a disproportionate and incoherent nature of the fine imposed by reference to the rules applicable in cartel cases and, second, incoherence of the amount imposed by reference to the Commission’s practice in taking decisions and to the objectives of the control of concentrations. 289 The Commission disputes the applicant’s arguments. 290 In the first place, as regards the disproportionate and incoherent nature of the fine imposed by reference to the rules applicable in cartel cases, the applicant claims, in essence, that, in the light of the leniency policy applicable in cartel cases, under which an undertaking which has participated in a cartel and which reports the existence of the cartel to the Commission may obtain total immunity from any fines, the applicant ought to have been granted such immunity. The applicant also observes that the Commission has provided itself with other legal tools which enable it to bring infringements to an end by alternative means, namely decisions making commitments binding in the context of Regulation No 1/2003 and compromises, which are based on the principle of the reduction or cancellation of the financial penalty for an undertaking which cooperates. The applicant also refers to the existence of a fine of a comparable amount in a Commission decision, contemporaneous with the contested decision, imposed on an undertaking which had participated for around 13 years in a secret cartel involving price fixing and the allocation of geographic markets, and it submits a summary table of amounts of fines imposed in certain other cartel cases. 291 It must be observed that, as regards the comparison with the leniency policy in cartel cases, the Commission rightly contends that it is ineffective. That policy corresponds to specific problems in detecting cartels, which by nature are secret infringements. The leniency programme and compromises are specific instruments linked to that context and any application by analogy in the context of the rules on concentrations of a Community dimension, which is based on a duty to notify and to comply with the Commission’s sole power to give prior authorisation, must be rejected. Likewise, as regards the Commission’s power under Regulation No 1/2003 to make commitments offered by undertakings binding and to find that there is no need to investigate an infringement, such decisions are designed to eliminate the negative effects on the market of the agreements or practices concerned. As the concentration at issue in the present case was approved, any analogy with that mechanism is irrelevant. 292 It is still necessary to examine the argument which the applicant derives from the fact that a fine of a comparable amount to that imposed on the applicant, namely EUR 19.8 million, was imposed on the Spanish company Repsol in Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C.39181 — Candle Waxes), a summary of which is published in the Official Journal of the European Union of 4 December 2009 (OJ 2009 C 295, p. 17). The applicant observes that Repsol was penalised for its long-term participation in a secret cartel, whereas the Commission takes issue with the applicant only for an infringement committed negligently without having any effects on the market. The applicant also refers to the existence of other examples of comparable amounts of fines imposed in other cartel decisions. However, that comparison cannot succeed, for the same reason as that stated in the preceding paragraph. Decisions taken in the particular field of cartels, which correspond to the specific objectives and specific methodology of that field, linked with the secret nature of cartels, cannot usefully be invoked for the purpose of evaluating the proportionate nature of the fine imposed in the present case. Furthermore, as the Commission is able to develop over time its fining policy for a certain type of infringement, as observed at paragraph 286 above, there is no apparent reason why it should not develop a fining policy corresponding to a specific logic in the field of concentrations. 293 In the second place, as regards incoherence of the amount imposed by reference to the Commission’s practice in taking decisions and to the objectives of the control of concentrations, the applicant maintains that, in imposing such a harsh penalty on an undertaking that contacted the Commission on its own initiative and in asserting that its own power to impose penalties was time-barred after five years, the Commission is sending a message that is contrary to the sound administration of its competition policy in the control of concentrations. In the applicant’s submission, an approach more in keeping with the principles of proportionality and sound administration might have consisted in finding that there had been an infringement of Article 7(1) of Regulation No 4064/89 without that finding entailing the imposition of a fine. The applicant observes, moreover, that the Commission had clearly asserted in Decision 1999/594 (paragraph 122 above) that it would impose only modest fines on undertakings which through mere negligence had failed to notify a concentration and which contacted the Commission on their own initiative. The applicant maintains, therefore, that the Commission did not observe the principle of legitimate expectations. 294 The Commission disputes the applicant’s arguments. 295 In that regard, as concerns the argument that the fine imposed in the present case is contrary to the sound administration of competition policy on the control of concentrations, the scenario predicted by the applicant, in which any parties guilty of a breach of the obligation to notify a concentration would find it to their advantage not to contact the Commission before the end of the five-year limitation period, especially if the transaction in question caused damage to competition, is in any event no more credible than that defended by the Commission, which states that it has every reason to believe that the imposition of significant fines for infringements of Article 7(1) of Regulation No 4064/89 will primarily have the effect of deterring undertakings from committing such infringements. It seems credible in fact that the mere announcement of the possible imposition of a fine of EUR 20 million, without the actual application of that fine, would clearly not have the same deterrent effect. 296 As regards the breach of the principle of legitimate expectations, the Court put a written question to the Commission about the scope of recital 18 to Decision 1999/594, paragraph 122 above, on which the applicant specifically relied in that respect and which is worded as follows: ‘… The Commission considers that, in the circumstances described by Samsung, that is negligent failure to file with no adverse competitive consequences and no complex situation with regard to the determination of control, an undertaking has every interest in informing the Commission and notifying the operation in question, as indeed Samsung did. The undertaking thereby runs the risk of having a relatively modest fine imposed on it by the Commission (depending on the circumstances of the case) but at the same time it will avoid the more serious consequences of a decision by the Commission under Article 14 of [Regulation No 4064/89] where the undertaking is acting in bad faith, and is found to be so doing …’ 297 When asked, in particular, whether, in view of the general nature of those assertions and also of the absence of any guidelines on fines in this field, those assertions could be taken to be an indication of the method which it proposed to follow in applying Article 14 of Regulation No 4064/89, the Commission stated that that passage was intended to reject Samsung’s suggestion that the Commission should adopt an amnesty policy in cases of unintentional non-notification which had no unfavourable consequences for competition and where the parties spontaneously drew the Commission’s attention to their error and sought to correct it. The Commission thus wished to indicate that an amnesty policy was neither necessary nor appropriate, because undertakings may in any event have an interest in informing the Commission. It was in that context that the Commission referred to the risk that the undertaking would receive a relatively modest fine, while making clear that that would apply only by reference to the specific circumstances of the case. 298 It must be held that the Commission’s explanation is plausible, although the reference at the end of the passage to the fact that a penalty under Article 14 of Regulation No 4064/89 would be imposed only in the event of bad faith is the consequence of an incorrect interpretation of that provision, which permits fines to be imposed even in the absence of bad faith, namely in the event of negligence, as is apparent from the analysis of that provision carried out above. 299 Furthermore, the Commission observes, correctly, that the applicant cannot rely on a legitimate expectation that the level of fines imposed 10 years before, at an early stage of the application of Regulation No 4064/89, will be maintained. It has already been stated above that the case-law recognises the need for the Commission to be permitted to adjust the level of fines to the needs of competition policy, which means that operators cannot have a legitimate expectation that an existing situation will be maintained, especially since competition policy is characterised by a wide discretion on the part of the Commission, in particular as regards the determination of the amount of fines (Dansk Rørindustri and Others v Commission, paragraph 230 above, paragraphs 169 to 173). Clearly, such an analysis applies for even stronger reasons, in the absence of guidelines, to infringements penalised under Regulation No 4064/89. The passage in question could not therefore be taken to indicate the method which the Commission proposed to follow in applying Article 14 of Regulation No 4064/89 in the future. 300 Nor is the reference which the Commission made before the Court to Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501 irrelevant. In that case, the Court considered, at paragraph 164 of the judgment, that the Commission’s previous practice followed for more than 20 years, by which it merely did not censure or penalise consultancy firms yet did not preclude the notion that they might be held liable for the infringement, could not give rise to a legitimate expectation that the Commission would in future abstain from penalising consultancy firms when they participate in a cartel. The fact that the amount of the fine imposed in that case was very small is not decisive for the present case, for, as the Commission correctly claims, it was a question of penalising entities, in particular consultancy firms, whose possible involvement in cartel activities had previously not been penalised by the Commission. 301 Last, the decisions of national authorities to which the Commission refers because they also concern the imposition of not insignificant fines for breaches of the prohibition on implementing concentrations are not in any event relevant when it comes to assessing the proportionate nature of the fine, as factual differences between the cases cited by the Commission and the present case can easily be found. 302 Consequently, the second part of the fourth plea must be rejected, as must, accordingly, the fourth plea in its entirety. 303 As regards the alternative claims, in so far as they relate to a reduction of the amount of the fine, the Court, in the exercise of its unlimited jurisdiction, considers, in any event, that there is no reason to reduce the amount of the fine in application of that jurisdiction, since it considers that that amount, which is quite clearly at the lower end of the scale of the amounts which could in theory have been imposed, is appropriate to the circumstances of the case, in view of the gravity and duration of the infringement found by the Commission and likewise of the applicant’s global resources. 304 In the light of all the foregoing, the action must be dismissed in its entirety. Costs 305 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 bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the latter. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action; 2. Orders Electrabel to pay the costs. Czúcz Labucka Gratsias Delivered in open court in Luxembourg on 12 December 2012. [Signatures] Table of contents Facts of the case Procedure and forms of order sought Law 1. The principal claims, seeking annulment of the contested decision Second plea, alleging infringement of Article 3(3) and Article 7(1) of Regulation No 4064/89 and breach of the principle that the Commission is required to comply with the rules which it has imposed on itself Second part of the second plea, alleging incomplete and incorrect application of the test laid down by the Commission in its ‘Guidelines’, and errors affecting the assessment of the factor relating to the holding of a majority at CNR’s general meetings First part of the second plea, alleging omission of a fundamental characteristic of CNR, and first complaint in the third part of the second plea, alleging an error affecting the factor relating to the holding of a majority by the applicant within CNR’s management board – The French State’s influence on the governance of CNR (composition and role of the management board and the supervisory board, Government commissioners, State controller) – The impact of the Murcef Law The other complaints in the third part of the second plea, relating to errors affecting the other factors identified in the contested decision – The complaint alleging an error of assessment with respect to the factor based on the respective industrial and commercial roles of the applicant and EDF within CNR during the period 2004 to 2006 – The complaint alleging an error of assessment with respect to the factor based on the statements of the managers of CNR, the applicant and Suez – The complaint alleging an error of assessment with respect to the factor based on the existence of a preferential right in favour of the applicant First plea, alleging infringement of Article 7(1) of Regulation No 4064/89 and infringement of Article 253 EC in that the Commission did not correctly characterise the infringement and in that the contested decision contains a contradiction in the grounds 2. The alternative claims, seeking annulment of the fine or a reduction of the amount of the fine Third plea, alleging infringement of Article 1 of Regulation No 2988/74, in that the Commission’s power to impose a penalty on the applicant was time-barred Fourth plea, alleging infringement of Article 14(2) of Regulation No 4064/89 and breach of the principles of proportionality, sound administration and legitimate expectations First part of the fourth plea, alleging manifest errors of assessment and the disproportionate nature of the amount of the fine by reference to the objective of penalising the individual infringement – The gravity of the infringement – The duration of the infringement – Mitigating circumstances – The proportionate nature of the fine Second part of the fourth plea, alleging that the fine is disproportionate by reference to the objective of deterrence and that the Commission’s competition policy lacks coherence Costs * Language of the case: French.