Judgment — ECLI:EU:C:2013:386
Date: 2013-06-13
Language of the case: Italian
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal against penalty
Origin: Italy

summary, in the application. However, it was correct to reject the overall reference to the annexes made in paragraphs 54 to 56 of the application and a late attempt on the part of the application to compensate for deficiencies therein. Findings of the Court 115 First of all, it must be borne in mind, as did the General Court in paragraph 161 of the judgment under appeal, that, by virtue of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. It is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Similar requirements are called for, as the General Court pointed out in paragraph 162 of that judgment, where a submission is made in support of a plea in law. 116 Next, it is appropriate to note that the General Court, having regard to the rule thus recalled, rejected an argument relating to Section 4.3 of the contested decision, entitled ‘Cartel meetings’, as inadmissible. The General Court took the view that that argument was fully explained, in law and in fact, only in certain annexes to the application. 117 In that regard, it is clear, first of all, that Versalis, by its sixth ground of appeal, disputes, as is apparent from the wording thereof and from paragraph 98 of the appeal, the ‘declaration of inadmissibility of certain annexes to the application initiating proceedings’. The General Court did not declare the annexes in question inadmissible, as the appellant claims, but an argument which appeared, among a number of other elements, only in those annexes. In that regard, Versalis has therefore read the judgment under appeal incorrectly. 118 The fact that Versalis reads the relevant part of the judgment under appeal in that way is corroborated by the potentially misleading argument, in paragraph 94 of the appeal, claiming that the rejection of that argument by the General Court is based on a ‘legalistic’ comparison of the names of the parties to that decision and the titles of the parties comprising the relevant section of its application at first instance. The General Court rejected that argument not on the ground that it was not correctly worded, but because it was not set out in the application itself. The fact that, in addition, there was no wording corresponding to the argument concerned in the application at first instance was pointed out by the General Court, in paragraph 167 of the judgment under appeal, merely for the sake of completeness. 119 Finally, with regard to paragraphs 54 to 56 of the application at first instance, set out in paragraph 165 of the judgment under appeal, and the notes referring thereto which, according to Versalis, referred to and summarised the content of the annexes in question, it is clear that it is not possible to deduce any specific legal or factual argument from the text of those paragraphs or notes. Consequently, the conclusion of the General Court that the main points of fact and law relating to Section 4.3 of the contested decision are not set out in the application is well founded. 120 It follows that the General Court did not err in law by declaring, in paragraph 170 of the judgment under appeal, that the argument put forward by Versalis related to Section 4.3 of the contested decision was inadmissible. Accordingly, the sixth ground of appeal must be rejected. 121 In consequence, since none of the grounds of appeal put forward by Versalis in support of its appeal is well founded, that appeal must be dismissed in its entirety. The cross-appeal The plea that there is no need to adjudicate on the cross-appeal 122 At the hearing, Versalis raised a plea that there was no need to adjudicate on the Commission’s cross-appeal, on the ground that the Commission no longer had any interest in bringing proceedings. After delivery of the judgment under appeal, the Commission informed the appellant of its intention to reopen the inquiry in so far as it concerned a repeated infringement by Versalis, with a view to adopting a new Statement of Objections. 123 That plea is unfounded. 124 In that regard, it must be borne in mind, first of all, that a loss of interest in bringing proceedings during the course of a case does not, in principle, affect admissibility, but may lead the Court to rule that there is no further need to adjudicate (see, to that effect, order of 5 March 2009 in Case C‑183/08 P Commission v Provincia di Imperia, paragraph 31). 125 In the present case, as the Commission rightly pointed out at the hearing, it has however retained its interest in bringing proceedings given that the pecuniary penalty imposed on Versalis by the contested decision, together with interest since the date of its adoption, continues to exist in the event that the Court of Justice should uphold the Commission’s cross-appeal, which would not be the case if the Commission were to adopt a fresh decision. Thus, in a similar situation, the Court of Justice has already held that the fact that the Commission prepares a draft regulation with a view to complying with a decision of the General Court does not imply, as such, that the Commission has lost any interest in bringing an appeal (see, to that effect, Case C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, paragraph 31). 126 In those circumstances, the plea raised by Versalis cannot be upheld. The single ground of appeal Arguments of the parties 127 In support of its cross-appeal, the Commission raises one ground of appeal, alleging infringement of Article 296 TFEU, read in conjunction with Article 101 TFEU, procedural defects harming the interests of the Commission and infringement of the principle of audi alteram partem. The judgment under appeal was incorrect to hold that the evidence supplied in the contested decision was insufficient to establish the imputation of an aggravating circumstance, namely repeated infringements by Eni and Versalis. 128 The Commission recalls, first of all, that, in paragraph 430 of the second Statement of Objections, it had stated its intention to take into consideration, as an aggravating circumstance, earlier infringements already found and had expressly referred to the participation of ‘Eni’ in the infringements covered by the Polypropylene and PVC II decisions. Versalis did not take a position in that regard during the procedure before the Commission. For the first time in its application at first instance, Versalis submitted, firstly, that the author of the earlier infringements and the person now involved in the infringement are not identical, since the sectors in question involved different products and markets and had already been transferred before the adoption of the Polypropylene and PVC II decisions and, secondly, that the undertaking in the group involved in the earlier competition cases was EniChem SpA. 129 However, Versalis has never asserted that the companies penalised in the Polypropylene and PVC II decisions were not under the control of the ‘Eni group’. The Commission is of the view that, had it so wished, it could have imposed the fine of the same parent company in those decisions, namely Eni SpA, which wholly controlled the companies which were the addressees of those decisions, EniChem SpA and Anic SpA. The General Court, in Case T‑203/01 Michelin v Commission [2003] ECR II-4071, confirmed that the Commission was entitled to consider in such circumstances that the same undertaking had already been censured for the same type of infringement. 130 The General Court did not put written questions to the parties on the subject of the repeated infringements or ask for clarification of the facts at the hearing. It was therefore totally unexpected for the judgment under appeal to annul in part the contested decision on the basis of an alleged lack of reasons. Accordingly, the judgment under appeal is vitiated by an infringement of Article 296 TFEU, read in conjunction with Article 101 TFEU. The General Court determined, wrongly, the object and the scope of the duty to state reasons. In addition, in the Commission’s submission, the General Court’s approach leads to a serious infringement of the principle of audi alteram partem and, consequently, a procedural defect which harms the interests of the Commission. 131 The Commission points out that the reasons for an act must be assessed in relation to its context. The Court of Justice has thus held, in its judgment in Case C‑42/01 Portugal v Commission [2004] ECR I‑6079, paragraph 66 and the case-law cited, that where the measure was adopted in a context with which the persons concerned were familiar, summary reasons are sufficient. In addition, according to the Commission, the General Court should have given the Commission the opportunity of clarifying and specifying its reasons, as it did in the case which gave rise to its judgment of 13 December 2012 in Case T‑103/08 Versalis and Eni v Commission. 132 In the view of the Commission, recitals 366 to 373 to the contested decision clearly establish the continuity between the addressee undertaking of the PVC II decision and that involved in the infringement at issue in the present case. Consequently, the Commission seeks to have the judgment under appeal set aside as regards the section where the General Court annulled in part the contested decision in respect of the finding of repeated infringements both with respect to the Polypropylene decision and the PVC II decision and, in any event, in so far as the annulment of that decision by the General Court refers to the finding of repeated infringements as regards the PVC II decision. 133 Versalis argues, firstly, that the Commission’s arguments based, inter alia, on the case which gave rise to the judgment in Versalis and Eni v Commission are purely factual. Those arguments did not appear either in the contested decision or in the documents produced by the Commission before the General Court and are therefore inadmissible. 134 Secondly, the appellant points out that it was formed in 1989, many years after the end of the conduct penalised by the Polypropylene and PVC II decisions and after the transfer of the activities concerned to unrelated companies or their allocation to joint undertakings. There is therefore no economic or operational continuity between those activities and the activity transferred to the appellant on 1 January 2002 by a company named ‘EniChem SpA’, which is not the company EniChem SpA to which the PVC II decision was addressed. The parent company of the group was, during the period which was the subject matter of the preceding decisions, Ente Nazionale Idrocarburi, a public body and not Eni SpA. 135 Thirdly, Versalis submits that the fact that the Commission raised the merely theoretical possibility of imputing, at that time, infringements which were the subject matter of the Polypropylene and PVC II decisions to that parent company amounts to creating an irrebuttable presumption that a parent company is liable for the past conduct of its wholly owned subsidiaries. In addition, the Commission ought to have shown, in accordance with the criterion applied by the Commission when adopting those decisions, that the parent company in question exercised a decisive influence over Anic SpA and EniChem SpA, which it failed to do either in those decisions or in the contested decision. 136 In addition, Eni SpA was not regarded as liable for the conduct of Anic SpA and EniChem SpA at the time of the adoption of the preceding decisions and has therefore never given its views in that regard. 137 Fourthly, with regard to its attitude and that of Eni SpA during the administrative procedure, Versalis submits that, in particular at the hearing, it did indeed challenge the imputation of repeated infringements. In any event, it was not obliged to submit observations on the second Statement. The judgment in Portugal v Commission is irrelevant in that context, since the Court of Justice confirmed in that judgment that the Commission may state summary reasons only where they concern subjects in respect of which the opposing party has not supplied any indications despite being expressly obliged to do so. There is no such obligation in the present case. 138 Fifthly, as regards the alleged infringement of the audi alteram partem rule, Versalis points out that its arguments were not submitted out of time and that the defect penalised by the General Court related to the substantive argument, so that it was not possible to remedy it during the proceedings before the Court. In any event, the reasons for a decision must be communicated to the party concerned at the same time as the decision having adverse effect and cannot be brought into order during the proceedings before the European Union courts. The Commission’s argument is therefore unfounded. Findings of the Court 139 It must be recalled, first of all, that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR, paragraph 72 and the case-law cited). 140 Thus, in the context of individual decisions, in accordance with the Court’s settled case-law, the purpose of the obligation to state reasons for an individual decision is both to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is vitiated by a defect which may permit its legality to be contested (Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraph 73 and the case-law cited). 141 The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the European Union courts (Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraph 74 and the case-law cited). 142 It follows therefrom that the Commission, when imposing a fine on a company for an infringement of the European Union competition rules and when applying, in calculating the fine, a multiplier to take account of the fact that that company had already been involved in an infringement of the competition rules, is required to provide, with the decision imposing the fine, a statement of reasons enabling the European Union Courts and that company to understand in what capacity and to what extent it was involved in the earlier infringement. In particular, if the Commission considers that that company was part of the addressee undertaking of the decision relating to the earlier infringement, it is for the Commission to state sufficient proper reasons for that assertion. 143 In the present case, it must be borne in mind that, in recital 430 to the second Statement of Objections, the Commission indicated that it would take into account previous findings of similar infringements, referring in that regard to the Polypropylene and PVC II decisions and indicating that ‘Eni’ had been ‘involved’ in those decisions. In essence, the same succinct finding appears in recital 487 to the contested decision, where the Commission notes, furthermore, that ‘EniChem’ had already been an addressee of those decisions. Finally, recital 488 to the contested decision can be understood as meaning that, according to the Commission, the same undertaking within the meaning of Article 101 TFEU is the author of the infringements forming the subject matter of the Polypropylene and PVC II decisions and of the infringement found by the contested decision. 144 Since the Polypropylene decision was addressed, inter alia, to Anic SpA and the PVC II decision, inter alia, to ‘EniChem SpA’, it is clear that the statements made in the contested decision and referred to in the preceding paragraph do not at all enable it to be understood in what capacity and to what extent Versalis, which is not among the addressees of the Polypropylene decision or the PVC II decision, was involved in those decisions. 145 Although the Commission submits that recitals 366 to 373 to the contested decision contain an exact description of all the events involving ‘EniChem’, those explanations concern only the changes which occurred within the Eni group between 20 May 1996 and 28 November 2002, as the General Court rightly noted in paragraph 299 of the judgment under appeal. However, those recitals do not contain any statement concerning the companies forming the addressee undertakings of the Polypropylene and PVC II decisions, do not mention whether those companies are identical to those referred to in the contested decision, which Versalis disputes, and do not deal either with any changes in that context which took place between the date of adoption of the Polypropylene decision, namely 23 April 1986, and the PVC II decision, namely 27 July 1994, and the start of the infringement found by the contested decision, namely 20 May 1996. 146 Accordingly, in that regard, insufficient reasons are stated for the contested decision. 147 Next, with regard to the alleged infringement of the principle of audi alteram partem giving rise to an infringement of the Commission’s rights of defence, as is apparent from the case-law cited in paragraph 141 of the present judgment, the Commission was required to state sufficient reasons when the contested decision was adopted. It does not appear that more extensive information that the Commission, in the absence of any alleged infringement of the principle of audi alteram partem, could have supplied to the General Court would have been likely to affect the outcome of the dispute before that Court in any way. 148 With regard to the argument that Versalis or Eni SpA, during the procedure before the Commission, had not yet raised the point that the addressees of the Polypropylene and PVC II decisions, on the one hand, and of the contested decision, on the other, were not identical, it suffices to recall that there is no provision of European Union law requiring the addressee of a Statement of Objections to dispute its various factual or legal elements during the administrative procedure. 149 In those circumstances, the General Court did not err in law by holding that the Commission, in the contested decision, did not provide sufficient detailed and precise evidence in the contested decision to support a finding that the same ‘undertaking’ within the meaning of Article 101 TFEU had repeated an infringement and by annulling, consequently, Article 2(c) of the contested decision, in so far as it sets the fine imposed on Versalis at EUR 272.25 million. 150 Accordingly, since the single ground of appeal put forward by the Commission in support of its cross-appeal is unfounded, it must be dismissed. Costs 151 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court of Justice is to make a decision as to the costs. Under Article 138(1) of those Rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 152 As regards the main appeal, since the Commission applied for costs against Versalis and since Versalis was unsuccessful, it must be ordered to pay the costs. 153 As regards the cross-appeal, since Versalis applied for costs against the Commission and since the Commission’s single ground of appeal was unsuccessful, it must be ordered to pay the costs. On those grounds, the Court (First Chamber) hereby: 1. Dismisses the main appeal and the cross-appeal; 2. Orders Versalis SpA to pay the costs of the main appeal; 3. Orders the European Commission to pay the costs of the cross-appeal. [Signatures] * Language of the case: Italian.