Opinion of the Advocate General — ECLI:EU:C:2011:89
Date: 2011-02-17
Language of the case: French
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - successful
Origin: France

summary published in OJ 2009 C 295, p. 17), that the decision at issue marks a departure from its previous decisional practice, in particular with respect to Elf Aquitaine. In that regard, Elf Aquitaine also refers to the Organic Peroxides decision (cited in paragraph 22 above), in which – in circumstances very similar to those of the present case – no objection was addressed to it for the collusive conduct of its Atofina subsidiary. 137 Elf Aquitaine claims, in the second place, that the General Court’s finding that the reasons given for the decision at issue were sufficient is based on materially inaccurate findings of fact, inasmuch as those reasons are not only succinct but, in Elf Aquitaine’s submission, insufficient, if not totally absent. 138 First, the decision at issue wholly failed to address certain specific arguments raised in response to the statement of objections. 139 Secondly, in the decision at issue the Commission merely rejected en bloc and without explanation Elf Aquitaine’s remaining arguments, generally and indiscriminately. For example, the Commission does not state which documents, from among those submitted to it, provided in its view merely ‘general or background corporate information [on Elf Aquitaine]’. 140 Accordingly, in Elf Aquitaine’s submission, the General Court ought to have annulled the decision at issue for failure to provide an adequate statement of reasons. 141 The Commission contends, first of all, that the present part of the ground of appeal must be declared inadmissible, since it does not precisely identify the contested elements of the judgment under appeal or the legal arguments relied on in support of this part. 142 The Commission maintains, next, that the case-law and the Commission’s decisional practice as regards the liability of parent companies were well known at the outset of the procedure that culminated in the decision at issue. 143 According to the Commission, although, in terms of relevant facts, there do not seem to have been any significant objective differences between the procedure culminating in the decision at issue and the procedure leading up to the Organic Peroxides decision, the difference in the Commission’s approach in the decision at issue can be explained, first, by the fact that the judgment of the General Court in Case T‑203/01 Michelin v Commission [2003] ECR II‑4071 was delivered between the date on which the statement of objections relating to the Organic Peroxides decision was sent and the date on which the statement of objections relating to the decision at issue was sent and, second, by a change of approach on the Commission’s part at some time around the years 2002 and 2003. Findings of the Court 144 According to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6375, paragraph 43 and the case-law cited). 145 Contrary to the Commission’s assertion set out in paragraph 141 above, the present part satisfies the requirements of that case-law and is admissible. 146 As to the merits, it should be borne in mind at the outset that the obligation laid down in Article 253 EC to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67, and Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35). 147 In that vein, the statement of reasons required under Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (see France v Commission, paragraph 35, and Deutsche Telekom v Commission, paragraph 130). 148 Thus, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see, inter alia, to that effect, Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 145, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Røhrindistri and Others v Commission [2005] ECR I‑5425, paragraph 462). 149 Accordingly, the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the Courts of the European Union (see Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22; Case C‑351/98 Spain v Commission [2002] ECR I‑8031, paragraph 84; Joined Cases C‑199/01 P and C‑200/01 P IPK-München and Commission [2004] ECR I‑4627, paragraph 66; and Dansk Røhrindistri and Others v Commission, paragraph 463). 150 It is settled case-law that the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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, inter alia, Commission v Sytraval and Brink’s France, paragraph 63; Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraphs 166 and 178; and Deutsche Telekom v Commission, paragraph 131). 151 It is also settled case-law that the statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (see, by analogy, Bertelsmann and Sony Corporation of America v Impala, paragraph 169 and the case-law cited). 152 Where, as in the present case, a decision taken in application of the EU competition law rules relates to several addressees and raises a problem with regard to the imputability of the infringement, it must include an adequate statement of reasons with respect to each of its addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Accordingly, in respect of a parent company held jointly and severally liable for the infringement committed by its subsidiary, such a decision must in principle contain a detailed statement of reasons for imputing the infringement to that company (see, by analogy, Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraphs 93 to 101). 153 As regards, more specifically, a Commission decision which relies exclusively, with respect to certain addressees, on the presumption that they actually exercised decisive influence, the Commission is in any event required – if it is not to render that presumption in reality irrebuttable – to explain adequately to those addressees the reasons why the elements of fact and of law put forward did not suffice to rebut that presumption. The Commission’s duty to state reasons for its findings on that point flows primarily from the fact that that presumption is open to rebuttal, for the purposes of which it is necessary for those concerned to produce evidence relating to the economic, organisational and legal links between the companies concerned. 154 That said, it should be borne in mind that the Commission is not required in such a context to adopt a position on factors which are manifestly irrelevant, unimportant or clearly ancillary (see, by analogy, Commission v Sytraval and Brink’s France, paragraph 64; Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I‑4777, paragraph 89; and Bertelsmann and Sony Corporation of America v Impala, paragraph 167). 155 It is also apparent from the case-law that, although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner (for example by a reference to those decisions), the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning (see, inter alia, Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 31, and Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraph 44). 156 By the present part of the third ground of appeal, Elf Aquitaine maintains, in essence, that the General Court ought to have found fault with the inadequacy of the statement of reasons that vitiates the decision at issue in so far as it concerns Elf Aquitaine. 157 As is clear from paragraph 87 of the judgment under appeal and from the material in the General Court file, the arguments put forward by Elf Aquitaine in response to the statement of objections in order to rebut the presumption applied by the Commission are listed succinctly in recital 257 to the decision at issue. The position which the Commission adopted in respect of those matters is set out in recitals 258 to 271 to that decision. 158 With respect to those recitals, the General Court – after setting out the essence of recital 258 to that decision in paragraph 85 of the judgment under appeal – states, in paragraph 86, that ‘although the Commission expressly asserted, [in that recital], that the 98% shareholding was sufficient for liability for Atofina’s acts to be imputed to Elf Aquitaine, it none the less made clear, later in that recital, that the evidence adduced by [Elf Aquitaine] did not allow that presumption to be rebutted’. 159 While it is true that in recitals 259 to 271 to the decision at issue the Commission responds to some of the arguments raised before it by Elf Aquitaine, the fact remains that those recitals fail to respond to several other arguments, in respect of which the only position taken in the decision at issue is to be found in recital 258. In accordance with the case-law set out in paragraphs 54 to 58 above, those arguments related in particular to economic, organisational and legal aspects with a view to demonstrating that, at the time of the facts at issue, Atofina determined its conduct on the market autonomously and did not carry out, in all material respects, instructions given to it by its parent company. 160 The arguments in question went, in substance, as follows: – Elf Aquitaine is merely a ‘pure holding company’ without operational functions, within a group characterised by the decentralised management of its subsidiaries; – the management of Atofina’s activities on the market was not subject to instructions from Elf Aquitaine; – Atofina did not inform Elf Aquitaine of its actions on the market; – Atofina had the power to enter into contracts without Elf Aquitaine’s prior authorisation; – Atofina was financially independent of Elf Aquitaine; – Atofina always defined its legal strategy autonomously; and – third parties perceived Atofina as being distinct from Elf Aquitaine. 161 Admittedly, as is apparent from paragraphs 150 and 154 above, and also as the General Court states in paragraph 90 of the judgment under appeal, the Commission is not necessarily required to adopt a position on all the arguments raised before it by interested parties. 162 However, it is apparent, too, from paragraph 150 above that the requirement to state reasons must be assessed by reference to the circumstances of the case. 163 According to Elf Aquitaine, the decision at issue and the procedure of which it forms part are characterised, in particular, by the fact that that decision – notably by relying with respect to Elf Aquitaine solely on a presumption of liability for the actions of its subsidiary, without adducing further evidence to show that Elf Aquitaine was involved in the business conduct of that subsidiary – departed from the Commission’s usual decisional practice. 164 In that regard, the Commission contends that the case-law and its own decisional practice in relation to the liability of parent companies were well known at the outset of the procedure leading to the adoption of the decision at issue. However, in its pleadings it states that ‘the Commission’s practice as to the use of the presumption based on ownership of all the capital was not always the same’. Furthermore, although the Commission asserts that it decided, ‘around 2002 ‑ 2003’, to apply such a presumption more systematically, it does not refer to any decision or other document revealing such a change in approach. Nor does it directly address Elf Aquitaine’s assertion that recital 574 to the decision of 1 October 2008 cited in paragraph 136 above recognised that the decision at issue marks a departure from previous decisional practice, in particular with respect to Elf Aquitaine. 165 It is in any event common ground in the present case, as is clear in particular from paragraphs 136 and 143 above, that, in the Organic Peroxides decision, Elf Aquitaine was not fined jointly and severally with its subsidiary for the subsidiary’s unlawful conduct, even though there do not appear to be any objective differences – at least from the Elf Aquitaine perspective – regarding the links between it and its subsidiary in the two cases. 166 The decision at issue and the procedure of which it forms part are also characterised by the following circumstances: – since the fine in respect of Atofina’s unlawful conduct is imposed jointly and severally on Atofina and Elf Aquitaine, a larger multiplier is used for calculating the starting amount of the fine, which means that the final amount of the fine is liable to be much higher than if the subsidiary alone were fined; – the fine is imposed on Elf Aquitaine solely on the basis of a ‘presumption that Elf Aquitaine is liable for the acts of its subsidiary Atofina’; that presumption is not necessarily the same in its application as the presumption of actual exercise of decisive influence set out in paragraphs 56 and 57 above; – as can be seen from the part of the present judgment in which the second ground of appeal is considered, Elf Aquitaine was not formally advised of the possibility that it would be held liable for the unlawful conduct of its subsidiary until the stage of the statement of objections, four years after the Commission’s investigation had begun; – in response to the statement of objections, Elf Aquitaine – as is clear from the General Court case-file – put forward a series of arguments, relying in particular on EU case-law, on the Commission’s decisional practice and on certain documents enclosed as annexes. 167 In those circumstances, as follows from paragraphs 146 to 155 above and, in particular, from paragraphs 148, 152, 153 and 155, it was for the General Court – in the light of all the circumstances of the case and, in particular, the change in approach (not disputed in the present proceedings) with respect to Elf Aquitaine between the Organic Peroxides decision and the decision at issue – to pay particular attention to the question whether the latter decision contains a detailed statement of the reasons why the Commission found that the evidence submitted by Elf Aquitaine was not sufficient to rebut the presumption applied in that decision. 168 Indeed, as is apparent from paragraph 85 of the judgment under appeal, recital 258 to the decision at issue, which sets out the only position adopted by the Commission in relation to the arguments set out in paragraph 160 above, consists merely of a repetitive and by no means detailed series of bald assertions and denials. In the particular circumstances of the present case, that set of assertions and denials is incapable, in the absence of further information, of enabling those concerned to ascertain the reasons for the measure or the competent Court to exercise its power of review. For example, owing to the formulation of recital 258, it appears very difficult – impossible even – to ascertain in particular whether the body of indicia submitted by Elf Aquitaine in an attempt to rebut the presumption applied to it by the Commission was rejected because it failed to convince or because, in the Commission’s eyes, the mere fact that Elf Aquitaine held 98% of Atofina’s capital was sufficient for liability for Atofina’s actions to be imputed to it, whatever the indicia that might have been provided by Elf Aquitaine in response to the statement of objections. 169 Accordingly, recital 258 to the decision at issue cannot be interpreted as stating to the requisite legal standard the reasons for the Commission’s position on several detailed arguments put forward by Elf Aquitaine. 170 In the light of the foregoing, it must be held that, in the particular circumstances of the present case and in the light of the case-law set out in paragraphs 147 to 155 above, the General Court erred in law in finding, in paragraph 91 of the judgment under appeal, that the decision at issue was in conformity with Article 253 EC and in not finding fault with an inadequate statement of reasons that vitiated the decision at issue to the extent that the fine imposed on Elf Aquitaine was concerned. 171 It follows that the first part of the third ground of appeal is well founded. Second part of the third ground of appeal and the fourth and fifth grounds of appeal 172 The second part of the third ground of appeal alleges, in essence, that certain elements of the General Court’s reasoning are incomprehensible and circular. 173 By its fourth ground of appeal, Elf Aquitaine claims that, in paragraph 160 et seq. of the judgment under appeal, the General Court went beyond the limits of its jurisdiction to review legality, by substituting its own reasoning for the inadequate statement of reasons of the Commission. 174 As stated in paragraph 27 above, the sixth ground of appeal is raised in the alternative. 175 In the light of the finding made with respect to the first part of the third ground of appeal, there is no need to consider the second part of that ground of appeal or the fourth or sixth grounds of appeal. 176 In the light of all the foregoing, the appeal must be allowed and the judgment under appeal set aside. The action before the General Court 177 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice, if the decision of the General Court is set aside, the Court of Justice may give final judgment in the matter where the state of the proceedings so permits. That is the situation in the present case. 178 As stated in paragraph 9 above, the second plea raised before the General Court alleges an inadequate statement of reasons. By that plea, Elf Aquitaine claims, in substance, that the decision at issue was vitiated by failure to provide an adequate statement of reasons in that it imputes to Elf Aquitaine liability for the unlawful conduct of its subsidiary solely on the basis of the size of Elf Aquitaine’s shareholding in the subsidiary, without further explanation. 179 In the light of the reasoning set out in paragraphs 144 to 171 above in the context of the first part of the third ground of appeal, the second plea raised before the General Court must be held to be well founded. 180 The decision at issue must therefore be annulled in that, without providing a statement of reasons appropriate to the particular circumstances of the case, it imputes the infringement at issue to and imposes a fine on Elf Aquitaine. 181 In those circumstances, there is no need to address the other pleas put forward before the General Court. Costs 182 The first paragraph of Article 122 of the Rules of Procedure provides that, where the appeal is unfounded or where the appeal is well founded and the Court of Justice itself gives final judgment in the case, it is to make a decision as to costs. 183 Under Article 69(2) of the Rules of Procedure, which is applicable to the proceedings on appeal pursuant to Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 69(3) of those Rules, however, where each of the parties succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the parties bear their own costs. 184 As both Elf Aquitaine and the Commission have been unsuccessful in part on some heads in the appeal, they must be ordered to bear their own costs in relation to that procedure. 185 As regards the costs of the action at first instance, on the other hand, as the Commission has ultimately been unsuccessful, it must be ordered to pay the costs of the proceedings at first instance, since Elf Aquitaine applied for costs. On those grounds, the Court (Second Chamber) hereby: 1. Sets aside the judgment of the Court of First Instance of the European Communities of 30 September 2009 in Case T‑174/05 Elf Aquitaine v Commission; 2. Annuls Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/37.773 – MCAA) in so far as it imputes the infringement in question to and imposes a fine on Elf Aquitaine SA; 3. Orders Elf Aquitaine SA and the European Commission to bear their own costs in relation to the present appeal; 4. Orders the European Commission to pay the costs of the proceedings at first instance. [Signatures] * Language of the case: French.