Judgment — ECLI:EU:T:2013:647
Date: 2013-12-13
Language of the case: English
Court formation: Third Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Slovenia

summary of the pleas in law relied on. That summary – albeit concise – must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action or, more specifically, a plea in law is to be admissible – that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 36, and Case T‑308/05 Italy v Commission [2007] ECR II‑5089, paragraphs 71 and 72). 119 It must be found that, as it is set out in the application, the third plea in law, though brief, is sufficiently developed to be adjudicated on in accordance with the case-law referred to in paragraph 118 above. 120 It must be noted, in that respect, that the Commission determined the amount of the fine imposed on the applicant and on the other addressees of the contested decision by following the method described in its 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 Guidelines’). That method comprises two steps. First, the Commission determines a basic amount for each undertaking or association of undertakings on the basis of the value of the relevant undertaking’s sales of goods or of services to which the infringement directly or indirectly relates in the relevant geographic area. The basic amount is related to a proportion – set in the present case, in recital 301 to the contested decision, at 17% – of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. However, in accordance with point 25 of the Guidelines, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum, known as an ‘entry fee’, of between 15 and 25% of the value of sales in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. In the present case, the ‘entry fee’ was also set, in recital 306 to the contested decision, at 17% of the value of sales. Secondly, the Commission may adjust the basic amount of the fine set during the first step either upwards or downwards to take account of aggravating or mitigating circumstances. In the present case, no such increase or decrease was applied in respect of the applicant, with the result that the amount of the fine imposed on it in Article 2(i) of the contested decision is equivalent to the basic amount, as set out in recital 308 to the contested decision. 121 It is clear that the applicant’s line of argument, as summarised in paragraph 117 above and viewed in the context of the present case, concerns the inclusion of the entry fee in the amount of the fine imposed on it, which it confirmed at the hearing. In essence, the applicant claims that since it was not personally involved in the infringement, it was not necessary to pursue an objective of deterrence against it and to include, for that purpose, the entry fee in the amount of the fine imposed on it. 122 That line of argument is based on the same misunderstanding as the second plea in law and must, for that reason, be rejected. 123 It must be pointed out, as a preliminary, that if the line of argument put forward by the applicant in support of its third plea in law were well-founded, the entire amount of the fine imposed would be called into question, and not just the inclusion, in that amount, of the entry fee. 124 As the applicant itself notes, it is clear from the case-law of the Court of Justice that the power to impose fines granted to the Commission by Article 23(2) of Regulation No 1/2003 is intended to enable it to carry out the task of supervision conferred on it by European Union law. That task includes in particular suppressing illegal activities and preventing their reoccurrence (see Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 22 and the case-law cited). 125 Concerning more specifically the entry fee, its inclusion in the amount of the fine is intended, in the words of point 25 of the Guidelines, ‘to deter undertakings from even entering into … agreements’ such as those at issue in the present case. It is clear that, since the basic amount of the fine is calculated on the basis of the duration of the participation in the infringement, there is a risk that, in the event of infringements of a short duration, the basic amount may prove to be insufficient – a risk which the inclusion of the entry fee in the amount is intended to prevent. 126 If it were to be found that the applicant had not participated in the infringement at issue and that, consequently, no deterrent objective had to be pursued against it, there would be no justification for the imposition of a fine on the applicant, not just the inclusion of the entry fee in the amount of that fine. 127 Be that as it may, it can be seen from the considerations set out in the analysis of the second plea in law that the applicant must be considered as having participated in the infringement. As found in the examination of the first plea in law, TDR, at the time of the infringement at issue, formed part of the same economic unit as the applicant. Accordingly, the unlawful conduct of the former may be imputed to the latter, in such a way that it is deemed to have committed that infringement itself (see, to that effect, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 34; Case T‑69/04 Schunk et Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 74; and Case T‑405/06 ArcelorMittal Luxembourg and Others v Commission [2009] ECR II‑771, paragraph 146). The Commission therefore acted correctly, and in accordance with the case-law referred to in paragraph 124 above, in imposing on the applicant a fine which included the entry fee. 128 The applicant’s argument concerning the fact that no fine has been imposed on TDR must also be rejected. It is apparent from recital 286 to the contested decision, and footnote 597 to that recital, that the imposition of a fine on TDR would not have made any sense. TDR had been declared bankrupt prior to the adoption of the decision and it would have been impossible for the Commission to recover the amount of any fine imposed on it, since the period for the declaration of claims in the bankruptcy proceedings had expired approximately a year before the adoption of the contested decision. In other words, the Commission refrained from imposing a fine on TDR not because it was not necessary for deterrent purposes, but because, in any event, it would not have been able to recover the amount of that fine. It does not in any way follow that those circumstances apply in the applicant’s case. 129 In its reply, the applicant claims that the Commission applied the same percentage, namely 17%, in calculating the entry fee for all of the addressees of the contested decision and thereby breached the principles of proportionality and equal treatment. The applicant submits, in that respect, that the Commission did not take into consideration whether each of the legal entities concerned had participated directly or indirectly in the infringement and, accordingly, had disregarded ‘the individual level of guilt involved and the individual need for deterrence’ in respect of each addressee of the contested decision. 130 Without it being necessary to examine whether, for the purposes of Article 48(2) of the Rules of Procedure, that line of argument merely amplifies the line of argument put forward in the application, or raises a new plea in law – which would be inadmissible since it would not be based on matters of law or fact which have come to light in the course of the procedure – it must, in any event, be rejected. 131 It follows from the foregoing considerations (see paragraph 127 above) that the distinction, invoked by the applicant, between entities which participated directly and those which participated indirectly in an infringement, has no basis in the case-law. All of the addressees of the contested decision are, as has already been pointed out, regarded as having participated directly in the infringement, regardless of whether the natural persons involved in the infringement were members of the staff or the management of those addressees, or of their subsidiaries with which they formed an economic unit. It follows that neither the principles of equality of treatment or proportionality, nor any other rule or principle of European Union law requires a differentiation in respect of the entry fee, based on the alleged ‘direct’ or ‘indirect’ nature of the participation of each addressee of the contested decision. 132 Moreover, as the Court held in Case T‑352/09 Novácke chemické závody v Commission [2012] (ECR II‑0000, paragraph 58), the Commission may set the percentage of the value of sales referred to in point 25 of the Guidelines and taken into account in order to calculate the entry fee, as well as that referred to in point 21 of the Guidelines, at the same level for all the cartel participants. Setting the same percentage for all the cartel participants does not mean that the same entry fee has been determined for all the cartel participants. Since that fee is a percentage of the value of each cartel participant’s sales in relation to the infringement, it will be different for each participant, depending on the differences in the value of participants’ sales. 133 It follows from all of the foregoing considerations that the third plea in law is also unfounded and must be rejected. The fourth plea in law, alleging that the Commission failed to take into account mitigating circumstances relating to the applicant 134 In the fourth plea in law, the applicant claims that even if the contested decision is not unlawful in so far as it imputes to the applicant the infringement committed by TDR, it is defective as regards the amount of the fine, since the Commission did not take into account the mitigating circumstances relating to it. The applicant invokes, as mitigating circumstances which should have been taken into account, first, the fact that it committed the infringement as a result of negligence and, secondly, the fact that the anti-competitive conduct imputed to it had been encouraged by the Republic of Slovenia, which transferred to the applicant its shareholding in TDR. In its reply, the applicant adds that the Commission’s failure to take account of mitigating circumstances relating to the applicant constitutes an infringement of the principles of equal treatment and proportionality. 135 It must be noted that, according to settled case-law, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them, which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established. That conclusion follows logically from the principle that penalties must be appropriate to the offender and the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under the competition rules of European Union law (see Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraphs 277 and 278 and the case-law cited). 136 In accordance with those principles, the Guidelines provide, in point 29, for the basic amount of a fine to be adjusted on the basis of certain mitigating circumstances, which are specific to each undertaking concerned. Point 29 lays down, in particular, a non-exhaustive list of the mitigating circumstances that may be taken into account. In particular, in accordance with the second indent of point 29, the basic amount of the fine may be reduced where the undertaking concerned provides evidence that the infringement has been committed as a result of negligence. Moreover, the fifth indent of point 29 provides that the basic amount of the fine may be reduced where the anti-competitive conduct has been authorised or encouraged by public authorities or by legislation, without prejudice to any action that may be taken against the Member State concerned. 137 First, as regards the argument that a mitigating circumstance should have been taken into account in relation to the applicant because it committed the infringement as a result of negligence, the applicant claims, more specifically, that if merely negligent participation in unlawful conduct may constitute a mitigating circumstance for a company which has itself committed the infringement, negligence by a parent company in detecting the unlawful conduct of its subsidiary must, a fortiori, be taken into account in the same way. Thus, in the event that it is found that it formed a single economic undertaking with TDR, the applicant claims that its failure to detect the unlawful conduct of its subsidiary was the result of negligence, which, moreover, according to the applicant, is amply demonstrated by the arguments and evidence put forward in its reply to the statement of objections. 138 That line of argument is based on the same misunderstanding of the content of the contested decision as that at the origin of the second and third pleas in law. It must therefore, like those two pleas in law, be rejected. 139 It must be noted, in that respect, that, as has already been pointed out (see paragraph 110 above), the Commission, in the contested decision, set forth in detail the factual indications which it had established in relation to, inter alia, TDR, and which showed the latter’s involvement in an infringement of the European Union competition rules. The Commission also referred, in the contested decision, to the various evidence on which it had relied in that regard. It must also be pointed out that the applicant did not contest, in its reply to the statement of objections or before the Court, its subsidiary’s involvement in the contested infringement and the circumstances established by the Commission in that respect. 140 It must also be recalled that, in accordance with settled case-law, for an infringement to be regarded as having been committed intentionally, and not as a result of negligence, it is not necessary for the undertaking concerned to have been aware that it was infringing the competition rules; it is sufficient that it could not have been unaware that its conduct had as its object the restriction of competition in the common market (see Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 41 and the case-law cited, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 205 and the case-law cited). 141 In view of the circumstances of the infringement at issue, as summarised in paragraph 1 above, it is obvious that the members of TDR’s personnel or management who participated on its behalf in various meetings organised in connection with the cartel, and who subsequently implemented the decisions taken at those meetings, could not have been unaware that their conduct had as its object the restriction of competition in the common market. That is in fact the direct and immediate consequence of market-sharing, quotas, customer-allocation and price-fixing among a number of participants on the same markets, all of which fall within the scope of the object of the infringement penalised by the contested decision (see, to that effect, Novácke chemické závody v Commission, cited in paragraph 132 above, paragraph 86). It follows that the Commission was correct in not finding, in the contested decision, that TDR had committed the infringement as a result of negligence, and it cannot be accused of erring in law in that regard. 142 As regards the applicant, as has already been pointed out, the infringement was not imputed to it in the contested decision on the ground that it had failed to detect the unlawful conduct of its subsidiary or, more generally, because it had failed to prevent its subsidiary from committing that infringement. It must again be noted that the infringement was imputed to the applicant because the Commission was of the view – correctly, as found in the examination of the first plea in law – that it formed an economic unit with TDR. As has been pointed out, in view of that finding, the applicant is regarded as having itself committed the infringement and cannot invoke a mitigating circumstance relating to infringements committed as a result of negligence, any more than it can do so in relation to its subsidiary TDR. 143 Secondly, the applicant’s argument that it should have had the benefit of a mitigating circumstance because the anti-competitive conduct at issue was authorised or encouraged by the Slovenian public authorities must also fail. 144 The applicant claims, in that regard, that its shareholding in TDR was imposed on it by a decision of the Slovenian Government, which, at the time, wholly owned the applicant as well as TDR. The latter was placed in the applicant’s portfolio of holdings by a government decision. The applicant is of the view that the mitigating circumstances set out in the fifth indent of point 29 of the Guidelines must apply a fortiori in the case of a wholly State-owned holding company which is ‘bequeathed’ a ‘smoking gun’, that is to say where it is forced to take on a shareholding in a company involved in an infringement of the competition rules. 145 That argument also arises from the same misunderstanding of the contested decision as that on which the first argument is based, examined in paragraphs 137 to 142 above. 146 As has been pointed out in the examination of the first plea in law, it is irrelevant how and why the applicant became the majority shareholder of TDR. It is doubtful whether, as regards a company, such as the applicant in the present case, it is possible to speak of a ‘will’ distinct and independent from that of its only shareholder, such as the Slovenian State in the present case, but even if the Slovenian State did indeed transfer the shareholding in TDR to the applicant against the latter’s will, it would be irrelevant. Irrespective of the reasons for the formation of the economic unit between the applicant and TDR, what is relevant for the purposes of the present case is that the unit in question continued to exist during the infringing period, which allows the conclusion that the applicant itself must be regarded as having committed the infringement, in the same way as its subsidiary. 147 Moreover, it must be pointed out that the circumstances alleged by the applicant in its line of argument summarised in paragraph 144 above are in no way comparable to those envisaged in the fifth indent of point 29 of the Guidelines. The mere fact that the Slovenian public authorities decided to transfer to the applicant the majority shareholding in TDR which had, until then, been owned by the Slovenian State does not mean that they authorised or encouraged the unlawful conduct of TDR. That is particularly so since that transfer, as the applicant itself affirms, was carried out in October 2002, whereas the unlawful conduct imputed to TDR began on 7 April 2004, as is clear from Article 1(g) of the contested decision. For that same reason, the applicant’s allegation that it was bequeathed a ‘smoking gun’ has no basis in fact. 148 Lastly, it must be observed that the applicant is of the view, as in the analysis of the second argument summarised in paragraph 142 above, that it has been held liable for the infringement because it did not detect the unlawful conduct of its subsidiary. It thus claims that, because it received a ‘smoking gun’ from the Slovenian State, it should be excused for failing to detect the anti-competitive conduct of its subsidiary. It suffices to note that that line of argument is based on an erroneous premise and must therefore be rejected, since the applicant has been held liable for the infringement because it is regarded as having itself participated in it. 149 In the light of all of the foregoing considerations, the fourth plea in law must be rejected. 150 Since all of the applicant’s pleas in law must be rejected, it is appropriate to reject the claims for annulment set out in the action. The application, made in the alternative, seeking the reduction of the fine imposed on the applicant, must also be rejected. In the exercise of its unlimited jurisdiction as regards the amount of the fine imposed on the applicant, the Court considers that the amount is in any event appropriate in view of the circumstances of the case as regards the gravity and duration of the infringement established by the Commission as well as the applicant’s economic resources and considers that nothing in the pleas and arguments put forward by the applicant leads to a different conclusion. Accordingly, the action must be dismissed in its entirety. Costs 151 Under the first indent of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action. 2. Orders Holding Slovenske elektrarne d.o.o. (HSE) to bear its own costs and to pay those incurred by the European Commission. Czúcz Labucka Gratsias Delivered in open court in Luxembourg on 13 December 2013. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought Law The first plea in law, claiming incorrect imputation to the applicant of TDR’s unlawful conduct Review of the case-law relating to the imputation to the parent company of an infringement committed by its subsidiary Contested decision Analysis of the plea – Introductory remarks – The alleged unjustified application of the shareholding presumption – Review of the case-law – Analysis of the indicia of a decisive influence referred to in the contested decision – The circumstances of the acquisition by the applicant of a shareholding in TDR – The inclusion of TDR’s turnover in the applicant’s consolidated accounts – The applicant’s rights as a shareholder of TDR and the powers of the various bodies of the latter – The reports and information communicated to TDR’s supervisory board and to the applicant – Conclusion on the first plea in law The second plea in law, alleging infringement of the presumption of innocence The third plea in law, alleging the erroneous inclusion of a ‘deterrence factor’ in the fine imposed on the applicant The fourth plea in law, alleging that the Commission failed to take into account mitigating circumstances relating to the applicant Costs * Language of the case: English.