62007TJ0042_EN
Parties
Grounds
Operative part
Parties
In Case T‑42/07,
The Dow Chemical Company, established in Midland, Michigan (United States),
Dow Deutschland Inc.,
established in Schwalbach (Germany),
Dow Deutschland Anlagengesellschaft mbH,
established in Schwalbach,
Dow Europe GmbH,
established in Horgen (Switzerland),
represented initially by D. Schroeder, P. Matthey and T. Graf, and subsequently by D. Schroeder and T. Graf, lawyers,
applicants,
v
European Commission,
represented initially by M. Kellerbauer, V. Bottka and J. Samnadda, and subsequently by M. Kellerbauer, V. Bottka and V. Di Bucci, acting as Agents,
defendant,
APPLICATION for annulment, so far as The Dow Chemical Company is concerned, of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or annulment, so far as Dow Deutschland Inc. is concerned, of Article 1 of that decision or reduction, so far as all the applicants are concerned, of the fine imposed on them,
THE GENERAL COURT (First Chamber),
composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska‑Białecka and N. Wahl, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 13 October 2009,
gives the following
Judgment
Grounds
Background to the dispute
1. By Decision C(2006) 5700 final of 29 November 2006 (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the market for those products.
2. The undertakings to which the contested decision is addressed are:
– Bayer AG, established in Leverkusen (Germany);
– The Dow Chemical Company, established in Midland, Michigan (United States) (‘Dow Chemical’);
– Dow Deutschland Inc., established in Schwalbach (Germany);
– Dow Deutschland Anlagengesellschaft mbH (formerly Dow Deutschland GmbH & Co. OHG), established in Schwalbach;
– Dow Europe, established in Horgen (Switzerland);
– Eni SpA, established in Rome (Italy);
– Polimeri Europa SpA, established in Brindisi (Italy) (‘Polimeri’);
– Shell Petroleum NV, established in The Hague (Netherlands);
– Shell Nederland BV, established in The Hague;
– Shell Nederland Chemie BV, established in Rotterdam (Netherlands);
– Unipetrol a.s., established in Prague (Czech Republic);
– Kaučuk a.s., established in Kralupy nad Vltavou (Czech Republic);
– Trade-Stomil sp. z o.o., established in Łódź (Poland) (‘Stomil’).
3. Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe are wholly controlled, directly or indirectly, by Dow Chemical (recitals 16 to 21 to the contested decision).
4. Eni’s business in the relevant products was initially carried out by EniChem Elastomeri Srl, indirectly controlled by Eni through its subsidiary EniChem SpA (‘EniChem SpA’). On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including its butadiene rubber and emulsion styrene butadiene rubber business) to its wholly-owned subsidiary Polimeri. Eni has had direct and full control of Polimeri since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial SpA (recitals 26 to 32 to the contested decision). The Commission uses the name ‘EniChem’ in the contested decision to refer to any company owned by Eni (‘EniChem’) (recital 36 to the contested decision).
5. Shell Nederland Chemie is a subsidiary of Shell Nederland, which is itself wholly controlled by Shell Petroleum (collectively ‘Shell’) (recitals 38 to 40 to the contested decision).
6. Kaučuk was created in 1997, following a merger between Kaučuk Group a.s. and Chemopetrol Group a.s. On 21 July 1997, Unipetrol acquired all assets, rights and obligations of the merged undertakings. Unipetrol owns 100% of the shares in Kaučuk (recitals 45 and 46 to the contested decision). Furthermore, according to the contested decision, Tavorex s.r.o. (‘Tavorex’), established in the Czech Republic, represented Kaučuk (and its predecessor Kaučuk Group) for exports between 1991 and 28 February 2003. Still according to the contested decision, from 1996 Tavorex represented Kaučuk at meetings of the European Synthetic Rubber Association (recital 49 to the contested decision).
7. Stomil, according to the contested decision, represented the Polish producer Chemical Company Dwory SA (‘Dwory’) in its export business for around 30 years, until at least 2001. Still according to the contested decision, between 1997 and 2000 Stomil represented Dwory at meetings of the European Synthetic Rubber Association (recital 51 to the contested decision).
8. The period taken to be the duration of the infringement is from 20 May 1996 to 28 November 2002 (for Bayer, Eni and Polimeri), from 20 May 1996 to 31 May 1999 (for Shell Petroleum, Shell Nederland and Shell Nederland Chemie), from 1 July 1996 to 28 November 2002 (for Dow Chemical), from 1 July 1996 to 27 November 2001 (for Dow Deutschland), from 16 November 1999 to 28 November 2002 (for Unipetrol and Kaučuk), from 16 November 1999 to 22 February 2000 (for Stomil), from 22 February 2001 to 28 February 2002 (for Dow Deutschland Anlagengesellschaft) and from 26 November 2001 to 28 November 2002 (for Dow Europe) (recitals 476 to 485 to and Article 1 of the operative part of the contested decision).
9. Butadiene rubber (‘BR’) and emulsion styrene butadiene rubber (‘ESBR’) are synthetic rubbers used essentially in tyre production. The two products are substitutable for each other and also for other synthetic rubbers and for natural rubber (recitals 3 to 6 to the contested decision).
10. In addition to the producers referred to in the contested decision, other producers located in Asia and in Eastern Europe sold limited quantities of BR and ESBR in the EEA. Moreover, a considerable amount of BR is produced directly by large tyre manufacturers (recital 54 to the contested decision).
11. On 20 December 2002 Bayer approached the Commission and expressed its desire to cooperate pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) with regard to BR and ESBR. As regards ESBR, Bayer provided an oral statement describing the activities of the cartel. That oral statement was recorded on tape (recital 67 to the contested decision).
12. On 14 January 2003 Bayer made an oral statement describing the activities of the cartel with respect to BR. That oral statement was recorded on tape. Bayer also provided minutes of meetings of the BR committee of the European Synthetic Rubber Association (recital 68 to the contested decision).
13. On 5 February 2003 the Commission notified Bayer of its decision to grant it conditional immunity from a fine (recital 69 to the contested decision).
14. On 27 March 2003 the Commission carried out an inspection pursuant to Article 14(3) 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) at the premises of Dow Deutschland & Co. (recital 70 to the contested decision).
15. Between September 2003 and July 2006 the Commission sent the undertakings to which the contested decision is addressed a number of requests for information pursuant to Article 11 of Regulation No 17 and Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recital 71 to the contested decision).
16. On 16 October 2003 Dow Deutschland and Dow Deutschland & Co. met Commission staff and expressed their desire to cooperate pursuant to the Leniency Notice. At that meeting, an oral presentation of the cartel’s activities with respect to BR and ESBR was given. That oral presentation was recorded. A file containing documents relating to the cartel was also handed over (recital 72 to the contested decision).
17. On 4 March 2005 Dow Deutschland was informed of the Commission’s intention to grant it a reduction in its fine of between 30% and 50% (recital 73 to the contested decision).
18. On 7 June 2005 the Commission initiated the procedure and sent a first statement of objections to the undertakings to which the contested decision is addressed – with the exception of Unipetrol – and also to Dwory. The first statement of objections was also adopted against Tavorex but was not notified to that undertaking since it had been in liquidation since October 2004. The procedure against Tavorex was therefore closed (recitals 49 and 74 to the contested decision).
19. The undertakings concerned lodged written comments in relation to that first statement of objections (recital 75 to the contested decision). They also had access to the file, in the form of a CD-ROM, and to the oral statements and documents relating thereto at the Commission’s premises (recital 76 to the contested decision).
20. On 3 November 2005 Manufacture française des pneumatiques Michelin (‘Michelin’) requested to intervene. It submitted written comments on 13 January 2006 (recital 78 to the contested decision).
21. On 6 April 2006 the Commission adopted a second statement of objections addressed to the undertakings to which the contested decision is addressed. The undertakings concerned lodged written comments in that regard (recital 84 to the contested decision).
22. On 12 May 2006 Michelin lodged a complaint pursuant to Article 5 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) (recital 85 to the contested decision).
23. On 22 June 2006 the undertakings to which the contested decision is addressed (with the exception of Stomil) and Michelin took part in the hearing before the Commission (recital 86 to the contested decision).
24. Since it did not have sufficient evidence of Dwory’s participation in the cartel, the Commission decided to close the procedure against that undertaking (recital 88 to the contested decision). The Commission also decided to close the procedure against Syndial (recital 89 to the contested decision).
25. Furthermore, although two different case numbers (one for BR and one for ESBR) had initially been used (COMP/E‑1/38.637 and COMP/E‑1/38.638), after the first statement of objections the Commission used a single number (COMP/F/38.638) (recitals 90 and 91 to the contested decision).
26. The administrative procedure led to the adoption of the contested decision by the Commission on 29 November 2006.
27. According to Article 1 of the operative part of the contested decision, the following undertakings had infringed Article 81 EC and Article 53 EEA by participating, for the periods indicated, in a single and continuous infringement by which they agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers in the BR and ESBR sectors:
(a) Bayer, from 20 May 1996 to 28 November 2002;
(b) Dow Chemical, from 1 July 1996 to 28 November 2002; Dow Deutschland, from 1 July 1996 to 27 November 2001; Dow Deutschland Anlagengesellschaft, from 22 February 2001 to 28 February 2002; Dow Europe, from 26 November 2001 to 28 November 2002;
(c) Eni, from 20 May 1996 to 28 November 2002; Polimeri, from 20 May 1996 to 28 November 2002;
(d) Shell Petroleum, from 20 May 1996 to 31 May 1999; Shell Nederland, from 20 May 1996 to 31 May 1999; Shell Nederland Chemie, from 20 May 1996 to 31 May 1999;
(e) Unipetrol, from 16 November 1999 to 28 November 2002; Kaučuk, from 16 November 1999 to 28 November 2002;
(f) Stomil, from 16 November 1999 to 22 February 2000.
28. On the basis of the findings of fact and legal assessments set out in the contested decision, the Commission imposed fines on the undertakings concerned calculated according to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and in the Leniency Notice.
29. Article 2 of the operative part of the contested decision imposes the following fines:
(a) Bayer: EUR 0;
(b) Dow Chemical: EUR 64.575 million, of which:
(i) EUR 60.27 million jointly and severally with Dow Deutschland;
(ii) EUR 47.355 million jointly and severally with Dow Deutschland Anlagengesellschaft and Dow Europe;
(c) Eni and Polimeri, jointly and severally: EUR 272.25 million;
(d) Shell Petroleum, Shell Nederland and Shell Nederland Chemie, jointly and severally: EUR 160.875 million;
(e) Unipetrol and Kaučuk, jointly and severally: EUR 17.55 million;
(f) Stomil: EUR 3.8 million.
30. Article 3 of the operative part of the contested decision orders the undertakings listed in Article 1 immediately to bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.
Procedure and forms of order sought by the parties
31. By application lodged at the Registry of the Court on 16 February 2007, Dow Chemical, Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe (collectively ‘Dow’) brought the present action.
32. By decision of the President of the General Court of 2 April 2009, N. Wahl was designated to complete the Chamber as one of its members was prevented from attending.
33. Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.
34. The parties presented oral argument and their answers to the questions put by the Court at the hearing on 13 October 2009.
35. Dow Chemical claims that the Court should annul the contested decision in so far as it is addressed to it.
36. Dow Deutschland claims that the Court should annul Article 1 of the contested decision in so far as it finds that there has been an infringement by Dow Deutschland of Article 81 EC and Article 53 EEA from 1 July 1996.
37. All the applicants (and Dow Chemical by way of alternative plea) claim that the Court should substantially reduce the amount of the fine imposed on them.
38. All the applicants claim that the Court should:
– order the Commission to pay all the applicants’ costs and expenses in relation to the present case as well as the costs which they incurred in providing a bank guarantee in lieu of the amount of the fine imposed on them by the contested decision pending the judgment of the Court;
– take any other measures that it may deem appropriate.
39. The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
40. Dow relies on three pleas in law in support of its claim. By its first plea, Dow challenges the Commission’s imputation of the infringement to Dow Chemical. By its second plea, Dow contends that the Commission erred in determining the duration of Dow Deutschland’s participation in the infringement. By its third plea, Dow maintains that the Commission made a number of errors in determining the amount of the fines imposed on it.
A – Claim for annulment in part of the contested decision
1. First plea in law: unlawful imputation of the infringement to Dow Chemical
41. Dow’s first plea consists of three parts. In the context of the first part, Dow maintains that the Commission applied an incorrect criterion when assessing the liability of a parent company. In the context of the second part, Dow contends that, in any event, Dow Chemical rebutted the presumption against it. In the context of the third part, Dow submits that the Commission erred in failing to exercise its discretion when determining whether the contested decision should be addressed to Dow Chemical and in failing to state reasons for its decision that the parent company should be held liable in the present case.
a) First part: application of an incorrect criterion when imputing the infringement to the parent company
42. Dow stated at the hearing that, in light of the judgment in Case C‑97/08 P Akzo Nobel and Others
v Commission
[2009] ECR I‑8237, it was withdrawing the first part of its first plea, of which formal notice was taken.
43. Accordingly there is no need for the Court to rule on the first part of the first plea in law raised by Dow.
b)  Second part: Dow Chemical’s rebuttal of the presumption against it
Arguments of the parties
44. Dow submits that, if there is a presumption that a parent company has decisive influence over a wholly-owned subsidiary, that presumption was rebutted by Dow Chemical in the present case. Dow emphasises, in that regard, that a parent company may rebut the presumption by demonstrating that it did not exercise a decisive influence on the conduct of its subsidiary. It is not required to show that it was no longer in a position to exercise decisive influence on the subsidiary. The applicable criterion is whether the subsidiary followed, ‘in all material respects, the instructions given to it by the parent company’ with respect to its ‘commercial policy’ (Case C‑286/98 P Stora Kopparbergs Bergslags
v Commission
[2000] ECR I‑9925). The expression ‘in all material respects’ includes whether the subsidiary complies with the competition rules or infringes them in order to obtain higher prices than it would normally have obtained on the market. The Commission adopted that approach in two cases mentioned by Dow. Dow observes on that point that liability for an antitrust infringement is incurred only where there is either intention or negligence (Article 23(2) of Regulation No 1/2003). The parent company can therefore be considered to have infringed Article 81 EC only where it has acted at least negligently with respect to its subsidiary’s infringement.
45. In the present case, the Commission wrongly assumes, without any evidence, that reporting lines between Dow Chemical and its subsidiaries covered the cartel activities, and that Dow Chemical was informed of those activities.
46. First, the Commission failed to take into account that, as stated in Dow’s responses to the statements of objections, Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe acted autonomously. In that regard, Dow emphasises that only a small number of employees of those three companies at a comparatively low level of the hierarchy participated in the infringement. The only senior employee in a position to have been aware of the activities of the cartel was Dow Deutschland’s then business director for synthetic elastomers. However, he has consistently denied having any knowledge of the infringement at issue and there is no evidence to the contrary. Furthermore, referring to the situation of the employees concerned in this case, Dow contends that the cartel and its poor organisation were already well established by the time Dow Deutschland became involved. There was no decision to initiate a process or to set up structures that could have led to Dow Chemical’s involvement.
47. Dow Chemical was not in a position to be automatically aware of any anti‑competitive activities when Dow Deutschland entered the market in question by becoming a distributer of Buna Sow Leuna Olefinverbund GmbH (‘BSL’) on 1 July 1996. The sector in question was a new activity for Dow, which did not integrate it into any of the existing organisational structures. Dow observes in that regard that BSL was a subsidiary that was wholly-owned by the Bundesanstalt für vereinigungsbedingte Sonderaufgaben (BvS) until 1 September 1999, when Dow acquired an 80% stake in BSL’s capital and joint control. Nor was it certain that BSL would continue to manufacture BR and ESBR. Dow became a producer of BR and ESBR in its own right only when it acquired Shell’s ‘synthetic rubber’ business on 1 June 1999.
48. The fact that Dow Chemical was not informed about the price discussions is consistent with the organisational structure of the group. The management of the ‘synthetic elastomers’ business was located within Dow Deutschland and Dow Deutschland & Co. (now, as noted in paragraph 2 above, Dow Deutschland Anlagengesellschaft). That sector was not integrated within any of the existing organisational structures and remained an independent activity. Dow Deutschland’s business director at the time reported to Dow Chemical personnel who, owing to their lack of experience in the synthetic rubber business, did not interfere with the business decisions taken by that director. Consequently, the industrial and economic links between Dow Chemical and its subsidiaries in the sector in question were not as solid as the Commission claims in recital 357 to the contested decision. The fact that the then business director of Dow Deutschland reported to Dow Chemical does not mean that Dow Chemical was aware of the cartel or that it was negligent in failing to uncover the existence of the cartel.
49. Dow Chemical was not in a position to put an end to the other group companies’ participation in the infringement, because it was not aware of it. That is the essential difference between the present case and Case T‑354/94 Stora Kopparbergs Bergslags
v Commission
[1998] ECR II‑2111. On the contrary, all Dow employees with commercial responsibilities received regular antitrust compliance training. In addition, the employees in question were all required to observe Dow Chemical’s Code of Business Conduct, which in 1999 contained rules on, inter alia, ‘antitrust compliance’, which Dow sets out. If the employees in question had raised the matter with any Dow lawyer, Dow would have taken all necessary steps to put an immediate end to the illegal practices.
50. Second, the Commission asserts that there were ‘reporting lines’ between Dow Chemical and its subsidiaries and assumes that those reporting lines ‘covered all material aspects of the BR/ESBR business’, that ‘[t]he cartel at issue was certainly an essential factor of the commercial policy pursued by the Dow subsidiaries involved in the BR/ESBR sector and [that] it cannot be accepted that their operations could be discussed [by them] without mentioning the existence of the cartel’ (recital 357 to the contested decision). However, the Commission provides no evidence for that assumption.
51. Contrary to the Commission’s assertion in recital 357 to the contested decision, Dow did not merely issue general denials, but stated that, in spite of a thorough internal investigation, there was no indication that anyone at Dow Chemical had been aware of the pricing discussions. In Dow’s submission, the fact that a reporting line exists to cover all material aspects of a business does not mean that that line is used to report cartel activities to the higher level. If the mere existence of reporting lines were sufficient to hold the parent company responsible for the conduct of its subsidiaries, it would be impossible to demonstrate that a subsidiary could behave autonomously. A subsidiary can act autonomously even if some of its employees report to persons holding positions in other companies of the group. Dow further submits that the present case differs from Case T‑314/01 Avebe
v Commission
[2006] ECR II‑3085. In that case, the executives of the joint venture (the subsidiary) simultaneously held operational responsibilities in the parent companies. The representatives of the parent companies were either directly involved in the infringement or necessarily aware of it. In addition, the subsidiary was created in a special legal form.
52. Third, Dow proposes that oral testimony be taken from a number of persons who were (or may have been) in a position to report information on the cartel activities to an employee of Dow Chemical and that they be asked whether they did so. Dow also proposes that oral testimony be taken from the persons whom the Commission identifies either expressly in footnote 218 to the contested decision or by reference to Dow’s letter of 26 July 2004 as forming part of the relevant reporting lines.
53. The Commission contends that the second part of the first plea in law should be rejected. It maintains, in essence, that the evidence put forward by Dow is not sufficient to rebut the presumption that applies in the present case.
Findings of the Court
54. The Commission states in the contested decision that a parent company may be regarded as liable for the unlawful conduct of a subsidiary if that subsidiary does not independently determine its own conduct on the market. The Commission refers in that regard, in particular, to the concept of undertaking in competition law (recitals 333 and 334 to the contested decision). The Commission states, moreover, that it can assume that a wholly-owned subsidiary essentially follows the instructions given to it by its parent company without needing to check whether the parent company has in fact exercised that power. It is for the parent company or subsidiary to rebut this presumption by producing evidence that the subsidiary decided independently on its own conduct on the market rather than carrying out its parent company’s instructions, with the result that they fall outside the definition of an undertaking (recital 335 to the contested decision).
55. The Commission goes on to find Dow Deutschland Anlagengesellschaft, Dow Deutschland and Dow Europe liable for their direct participation in the infringement. It states that, during the period of the infringement, those companies were, directly or indirectly, wholly-owned by Dow Chemical. In the Commission’s view, it could therefore be presumed that the parent company had exercised a decisive influence over the conduct of its subsidiaries. That presumption is strengthened, in the present case, by a number of factors. The Commission concluded that the contested decision had to be addressed to Dow Deutschland Anlagengesellschaft, Dow Deutschland, Dow Europe and Dow Chemical, which had to be held jointly and severally liable for the infringement (recitals 340 to 364 to the contested decision).
56. It must be observed, in that regard, that in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the Community competition rules the parent company can exercise a decisive influence over the conduct of the subsidiary and, moreover, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Akzo Nobel and Others
v Commission, cited in paragraph 42 above, paragraphs 60 and 61 and the case-law cited).
57. Since Dow has withdrawn the first part of its first plea, it does not deny that the Commission was entitled to presume that, owing to the fact that Dow directly or indirectly held 100% of the capital of its subsidiaries, it exercised a decisive influence over their conduct.
58. Consequently it was for Dow Chemical to rebut that presumption by demonstrating that those subsidiaries determined their commercial policy autonomously in such a way that they and their parent company did not constitute a single economic entity and, therefore, a single undertaking for the purposes of Article 81 EC.
59. Specifically, it was for Dow Chemical to adduce any evidence relating to the organisational, economic and legal links between its subsidiaries and itself which in its view were apt to demonstrate that they did not constitute a single economic entity. When making its assessment the Court must take into account all the evidence adduced, the nature and importance of which may vary according to the specific features of each c ase (Case T‑112/05 Akzo Nobel and Others
v Commission
[2007] ECR II‑5049, paragraph 65).
60. First, by its arguments, Dow maintains in essence that, as it was not involved in the infringement or even aware of it, it should not be held liable for it. Dow nevertheless indicated at the hearing that, in light of the judgment in Case C‑97/08 P Akzo Nobel and Others
v Commission, cited in paragraph 42 above, it was not in a position to rebut the presumption since it follows from that judgment that the decisive influence exercised by the parent company does not necessarily need to relate to the subsidiary’s commercial policy or, a fortiori, to the infringement. Dow thus recognises that its arguments cannot call into question the legality of the contested decision in that regard. Moreover, Dow indicated at the hearing that it was withdrawing its arguments under the second part of the first plea in law relating to that issue.
61. Second, for the sake of completeness, the Commission sets out in the contested decision other evidence to suggest that Dow Chemical exercised a decisive influence over the conduct of its subsidiaries. In particular, the Commission notes that the employees who were involved in the infringement reported to the business director (synthetic rubber) of Dow Deutschland, who, in turn, reported to Dow Chemical’s sector managers who ultimately reported to the chief executive officer (CEO) (recitals 344 to 352 to the contested decision). Dow does not contest those facts but takes the view that they do not indicate that Dow Chemical was actually aware of the cartel or that it displayed negligence by failing to uncover the existence of the cartel. However, for the reasons set out in the preceding paragraph, those arguments do not rebut the presumption applicable to Dow Chemical, as Dow itself acknowledged at the hearing.
62. Nevertheless Dow stated at the hearing that the Commission had erred in concluding, in recital 357 to the contested decision, that Dow Chemical was aware of the cartel’s activities. For Dow, if the Commission’s assertion were correct, Dow Chemical would be directly involved in the cartel. Yet that assertion goes beyond the liability of a parent company of a wholly-owned subsidiary. The Commission has not produced any evidence in that respect. Referring to Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler
v Commission
[2009] ECR I‑7191, and taking the view that the present case is comparable to the case which gave rise to that judgment, Dow concludes that the contested decision is, in that respect, unlawful.
63. It is not necessary to rule on the admissibility of the arguments on which Dow relied at the hearing as it suffices to note that those arguments are based on the premiss that, as a result of the matters referred to in recital 357 to the contested decision, the Commission also found Dow Chemical liable for its direct participation in the infringement and that the present situation is therefore comparable to Papierfabrik August Koehler
v Commission, cited in paragraph 62 above. However, it is clear from recitals 340 to 343 to the contested decision that Dow Chemical was found liable only because it directly or indirectly controlled the undertakings which participated directly in the infringement, that is Dow Deutschland Anlagengesellschaft, Dow Deutschland and Dow Europe. Dow’s premiss is therefore incorrect.
64. It follows that Dow’s arguments do not alter the fact that Dow Chemical and its subsidiaries could be regarded as a single economic entity. In that context, the Court considers it unnecessary to proceed with the measures of organisation of procedure requested by Dow.
65. In the light of those considerations, the second part of the first plea in law raised by Dow must be rejected as unfounded.
c) Third part: error in the exercise of the Commission’s discretion and failure to state reasons
Arguments of the parties
66. Dow submits that, in any event, the Commission states that ‘[i]n the case of ultimate parent companies, when addressing a decision to them, the Commission applies a general policy which is confirmed by settled case-law …, and from which it sees no compelling reasons to depart’ (recital 362 to the contested decision).
67. However, the case-law of this Court and of the Court of Justice to which recitals 333 to 336 to the contested decision refer does not confirm any general policy on the part of the Commission to address a decision to the ultimate parent company of a group. That case-law states only that there is a rebuttable presumption that the parent company actually exerted decisive influence over a wholly-owned subsidiary and where the parent company fails to rebut that presumption the Commission can (but without being required to) hold the parent company liable for the conduct of the subsidiary.
68. Furthermore, referring to a number of Commission decisions, Dow observes that in other cases the Commission has not held the parent company liable even though it held 100% of the shares in its subsidiary, without indicating why it did not impose the fine on the parent company.
69. Taking those factors into account, Dow contends that the Commission should exercise its discretion on a case-by-case basis. Yet in the present case it has failed to do so, without giving the slightest explanation, as is evident in particular from recital 362 to the contested decision. Dow further submits that there is a difference between a general policy of acting against infringements of Community competition law and bringing proceedings against the undertakings concerned, and a general policy of always holding the parent company liable.
70. Dow recalls that it maintained during the administrative procedure that it would be unduly harmed if the Commission addressed the decision that it was intending to adopt to Dow Chemical, since that would probably result in unwarranted civil litigation in the United States. Dow emphasises in that regard that a few days after the contested decision was announced by the Commission, Dow Chemical was named in class actions before several United States courts. In addition, Dow Chemical pointed out that the fact that the contested decision was addressed to it is not consistent with the Commission’s leniency policy, since an undertaking will be less likely to cooperate if its cooperation will increase its exposure to actions for damages by third parties. The Commission expressly recognises that in point 6 of the Notice of 8 December 2006 on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17).
71. Dow concludes that the Commission did not sufficiently consider those arguments by simply saying that they were of an ‘eminently political nature’. Rather, the Commission was under an obligation to consider those arguments and to weigh them against possible arguments in favour of addressing the contested decision to Dow Chemical. However, it failed to do so.
72. In any event, the contested decision is characterised by a lack of reasoning in that the Commission does not state in that decision the reasons why it ultimately chose to address the contested decision to the parent company in the present case. It is unnecessary for the Commission to explain why it does not consider a parent company to be liable for the acts of one of its subsidiaries, since such a decision harms no one. By contrast, it is necessary for the Commission to evaluate the various arguments in question and to explain the reasons for its decision when it imposes a fine on a parent company for the infringements committed by one of its subsidiaries.
73. The Commission contends that the third part of the first plea in law should be rejected. It takes the view, in essence, that where the conditions for imputation of the subsidiaries’ conduct to the parent company are satisfied, it is under no obligation to explain the choice of addressees of its decision.
Findings of the Court
74. It will be recalled that, for the reasons set out in connection with the second part of the first plea, the Commission can impute to the parent company liability for an infringement committed by a subsidiary if that subsidiary does not independently determine its own conduct on the market. In the present case, it is apparent from the considerations set out above that there was no error on the Commission’s part in that regard. The fact that Dow Chemical is the ultimate parent company of the group cannot alter that conclusion, since there is no dispute about the fact that it controls, albeit indirectly, all the capital of the companies which were directly involved in the infringement, namely Dow Deutschland Anlagengesellschaft, Dow Deutschland and Dow Europe (see, to that effect, Case T‑203/01 Michelin
v Commission [2003] ECR II‑4071, paragraph 290). Furthermore, it must be pointed out that Dow Chemical directly controls all the capital of Dow Europe, which the Commission found liable for its direct involvement in the infringement, a point which has not been challenged in the context of the present proceedings.
75. As regards the alleged lack of conformity of the contested decision with the Commission’s practice in taking decisions, and in so far as Dow relies on a breach of the principle of equal treatment, it must be borne in mind first of all that, for the reasons set out in paragraph 56 above, the conduct of a subsidiary which infringes the competition rules can be imputed to the parent company. Next, it must be noted that the imputation of the infringement to the parent company is a power that is left to the Commission’s discretion (see, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Bank der österreichischen Sparkassen v Commission
[2009] ECR I‑8681, paragraph 82, 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 331). In those circumstances, it must be held that the mere fact that the Commission has taken the view in previous decisions that the circumstances of a case do not justify imputing the conduct of a subsidiary to its parent company does not mean that it is obliged to make the same assessment in a later case (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others
v Commission (‘ PVC II ’) [1999] ECR II‑931, paragraph 990). For the sake of completeness, it must be observed that where an undertaking has acted in breach of Article 81(1) EC, it cannot escape being penalised altogether on the ground that another trader has not been fined, when that trader’s circumstances are not even the subject of proceedings before the Court (see PVC II, paragraph 1237 and the case-law cited).
76. The fact that Dow Chemical would be unduly harmed by being an addressee of the contested decision does not affect the lawfulness of that decision since, for the reasons previously set out, the Commission was entitled to impute liability for the infringement at issue to Dow Chemical.
77. Last, as regards the alleged lack of reasoning, it must be borne in mind that the statement of reasons for an individual decision must disclose, clearly and unequivocally, the reasoning of the institution which adopted it, in such a way as to allow those concerned to know the reasons for the measure and the competent court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the case. The reasoning is not required to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 253 EC must be assessed by reference not only to the wording of the measure in question but also to the context in which it was adopted (Case C-367/95 P Commission
v Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63).
78. The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement (Case C‑291/98 P Sarrió
v Commission
[2000] ECR I‑9991, paragraph 73, and 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 463).
79. In the present case, it is sufficient to observe that the Commission clearly identified, in recitals 333 to 338 and 340 to 364 to the contested decision, the factors which enabled it to find Dow Chemical liable in this instance. Dow, moreover, is contesting those factors in the present action. That being the case, the Court does not accept that there has been a failure to state reasons as alleged by Dow.
80. In the light of those considerations, the third part of the first plea in law raised by Dow must be rejected as unfounded, as, therefore, must the first plea in its entirety.
2. Second plea in law: incorrect determination of the duration of Dow Deutschland’s participation in the infringement
a) Arguments of the parties
Arguments of Dow
81. In the contested decision, the Commission takes as the starting point for an undertaking’s participation in the infringement the date on which an employee of the undertaking in question first attended one of the European Synthetic Rubber Association subcommittee meetings. Thus the starting date for Dow Deutschland Anlagengesellschaft’s participation in the infringement was taken as 22 February 2001 and for Dow Europe’s participation as 26 November 2001 (recital 450 to the contested decision).
82. However, although BSL made one of its employees available to Dow Deutschland on 1 July 1996 (recital 100 to the contested decision), he did not attend his first meeting on behalf of Dow Deutschland until 2 and 3 September 1996 (recital 167 to the contested decision). There is no indication in the contested decision that that employee was in contact with representatives of the other parties to the cartel between 1 July 1996 and the meeting held on 2 and 3 September 1996. The Commission’s approach amounts to regarding Dow as having been retroactively liable for that employee’s participation in the meeting of 20 and 21 May 1996. The Commission therefore discriminates against Dow Deutschland by reference to the other addressees of the contested decision. Since the infringement (if any) by Dow Chemical is limited to that of its subsidiaries, the same applies to Dow Chemical as a whole.
83. Furthermore, the Commission does not explain in the contested decision why it chose a different approach to Dow Deutschland, which constitutes a failure to state reasons.
Arguments of the Commission
84. In the Commission’s submission, Dow’s second plea is based on the incorrect assumption that the Commission had generally chosen the date of participation in one of the subcommittees of the European Synthetic Rubber Association as the starting point of the participation in the infringement. On the contrary, it followed its usual practice, that is to say, it chose the date on which an employee of the undertaking first participates in the cartel activities (recital 444 to the contested decision).
85. In the case of Dow Deutschland (and therefore of Dow Chemical), the Commission correctly considered in the contested decision that its participation in the infringement commenced on the date on which an employee of BSL, who was already participating in the cartel activities, was seconded to it. Dow Deutschland must therefore be considered liable for the participation of its employee from that date. Dow did not contest the evidence that the employee seconded to Dow Deutschland was already participating in the activities of the cartel. Likewise, that employee continued to participate in those activities after being seconded to Dow Deutschland (recitals 166, 167 and 169 to 182 to the contested decision).
86. Nor does Dow contest that, during the period between 1 July 1996 and the next meeting of the European Synthetic Rubber Association, the cartel remained in force. In particular, the Commission maintains that participation in ongoing cartel activities was not interrupted during the period in which no cartel meetings or any implementation of cartel decisions were envisaged. In order to put an end to participation in a continuous cartel, the participant must show that it publicly distanced itself from the cartel in an unambiguous manner that leaves its erstwhile co-participant undertakings in no doubt that it has left the cartel (Case T‑7/89 Hercules Chemicals
v Commission
[1991] ECR II‑1711, paragraph 232; Case T‑12/89 Solvay
v Commission
[1992] ECR II‑907, paragraph 98; and Case T‑56/99 Marlines
v Commission
[2003] ECR II‑5225, paragraph 56).
87. As regards the lack of reasoning alleged by Dow, the Commission refers to recital 444 to the contested decision and also to recital 19 for the factual background to that recital.
b) Findings of the Court
88. It must be noted that, as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe
v Commission
[1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni
[1999] ECR I‑4125, paragraph 86). Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point (Case T‑38/02 Groupe Danone
v Commission
[2005] ECR II‑4407, paragraph 215).
89. Furthermore, it is clear from the case-law that it is incumbent on the Commission to prove not only the existence of the agreement but also its duration (Case T‑43/92 Dunlop Slazenger
v Commission [1994] ECR II‑441, paragraph 79; Case T‑48/98 Acerinox
v Commission
[2001] ECR II‑3859, paragraph 55; and Case T‑62/02 Union Pigments
v Commission
[2005] ECR II‑5057, paragraph 36). To calculate the duration of an infringement whose object is to restrict competition, it is necessary to determine the period during which the agreement existed, that is, the time between the date on which it was entered into and the date on which it was terminated (Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission
[2005] ECR II‑3033, paragraph 185, and Case T‑303/02 Westfalen Gassen Nederland
v Commission
[2006] ECR II‑4567, paragraph 138). If there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued without interruption between two specific dates ( Dunlop Slazenger
v Commission, paragraph 79, and Case T‑120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II‑4441, paragraph 51).
90. In the present case, the Commission finds that Dow Deutschland participated in the infringement from 1 July 1996 (Article 1 of the operative part of the contested decision). Specifically, the Commission notes that Mr N. was seconded to Dow Deutschland from BSL from 1 July 1996, before becoming a Dow employee from 1 October 1997 (recital 100 to the contested decision). The Commission also notes that BSL participated in its first cartel meeting in May 1996, but that Dow cannot be held responsible for BSL’s conduct prior to the entering into force of the marketing contract between BSL and Dow on 1 July 1996. Last, the Commission states that, after the entering into force of the marketing contract between BSL and Dow, Dow ‘continued’ to participate in the cartel. The Commission notes in that regard that, in the cartel meeting of 2 and 3 September 1996, Mr N. represented both BSL and Dow. The Commission concludes that Dow’s involvement in the infringement started at least on 1 July 1996 (recital 444 to the contested decision).
91. It must be observed that, apart from the fact that Mr N. was seconded from BSL, the Commission does not refer to any evidence to suggest that Dow Deutschland was involved in the infringement between 1 July and 2 September 1996. Specifically, the Commission has not adduced any concrete evidence to support the conclusion that there was a concurrence of wills between Dow Deutschland and the other members of the cartel between 1 July and 2 September 1996.
92. Furthermore, the documents produced to the Court do not indicate that a member of the cartel made any approach to Dow Deutschland that had an anticompetitive purpose.
93. The mere fact that an employee of a company which participated in a cartel is seconded to another company does not, in itself, imply that the latter company automatically becomes a member of the cartel. It is not inconceivable that, in those circumstances, the employee in question will decide not to involve in anti‑competitive practices the company to which he is seconded or that that company will take steps to avoid that type of practice.
94. Furthermore, the Commission’s statement that Dow ‘continued’ to participate in the cartel after 1 July 1996 is inaccurate, since it is common ground that Dow, in all events, never participated in the infringement before that date.
95. Moreover, the Commission has not proved that, during the period between 1 July and 2 September 1996, Dow Deutschland implemented – as a result of information obtained by Mr N. in his previous role – the agreements reached within the cartel and did not, therefore, act independently on the market. It must be noted in that regard that, while it has from time to time been recognised in the case-law that the possession of information from competitors might suggest that the undertaking at issue was not pursuing an independent policy on the market, even during its alleged withdrawal from a cartel, the undertaking in question had already participated in that cartel (see, in particular, Union Pigments
v Commission, cited in paragraph 89 above, paragraph 39 and the case-law cited).
96. It follows from this that the Commission has not demonstrated to the requisite legal standard the existence of circumstances constituting an infringement in the period between 1 July and 2 September 1996 so far as Dow Deutschland is concerned. By contrast, Dow does not deny that Dow Deutschland participated in the infringement from 2 September 1996.
97. The other arguments put forward by the Commission do not affect that finding.
98. With regard to recitals 166, 167 and 169 to 182 to the contested decision, to which the Commission refers in its written submissions, these indicate that Mr N. participated as a representative of Dow Deutschland and of BSL in meetings of the cartel from 2 and 3 September 1996. Those recitals do not demonstrate that Mr N. participated in the activities of the cartel on behalf of Dow Deutschland between 1 July and 2 September 1996.
99. As regards the case-law relied on by the Commission according to which participation in the ongoing activities of a cartel is not interrupted during the period in which no cartel meetings or any implementation of cartel decisions are envisaged, this applies where the undertaking in question has already participated in the activities of the cartel, which is not so in the case of Dow Deutschland prior to the meeting of 2 and 3 September 1996. Dow Deutschland cannot therefore be accused of having failed to distance itself from a cartel in which it had not yet participated.
100. In the light of the foregoing, the second plea in law must be upheld and, in accordance with the form of order sought by Dow Deutschland, Article 1 of the contested decision must be annulled in so far as Dow Deutschland is found to have participated in the infringement at issue from 1 July 1996 instead of from 2 September 1996.
3. Third plea in law: incorrect determination of the amount of the fines imposed on the applicants
101. Dow’s third plea in law consists of nine parts. In the context of the first part, Dow contends that the Commission erred in determining the gravity of the infringement. The second to sixth parts deal with the application of differential treatment to the basic amounts of the fines. The seventh and eighth parts concern the application of a multiplier for deterrence. In the context of the ninth part, Dow maintains that the Commission erred in determining the duration of the infringement.
a) First part: incorrect determination of the gravity of the infringement
Arguments of the parties
102. Dow does not dispute the Commission’s finding that the infringement can be qualified as very serious within the meaning of the Guidelines. However, the principle of non-discrimination requires the Commission to assess in detail the nature of the infringement when setting the starting amount of the fine within the category of very serious infringements.
103. In the present case, the Commission failed to take into account the fact that the infringement was not the consequence of a carefully prepared and very elaborate arrangement. The participants in the cartel merely met informally up to four times a year on the fringes of the European Synthetic Rubber Association subcommittee meetings (recitals 94 and 95 to the contested decision). None of the mechanisms frequently encountered in highly-developed cartels – such as control mechanisms or systematic retaliations – existed in the present case. The Commission itself considers that there were no systematic price agreements (recitals 270 and 272 to the contested decision). Those factors, which the Commission failed to take into account in recital 461 to the contested decision, plead in favour of a lower basic amount of the fine than the one applied by the Commission. Dow observes that this Court, in Groupe Danone
v Commission, cited in paragraph 88 above (paragraph 393), stated that the absence of implementing mechanisms ought to be taken into consideration, under the Guidelines, in relation to the gravity of the infringement.
104. Dow adds that, under the third indent of Section 1A of the Guidelines, the Commission can treat undertakings differently according to the nature of the infringement only where the infringements were committed within the category of very serious infringements. The Commission must therefore take into account the special circumstances of the case.
105. The Commission contends that the first part of the third plea in law should be rejected. It submits, in particular, that the starting amount of the fine was determined in accordance with the size of the product market and the nature of the infringement.
Findings of the Court
106. The gravity of infringements must be determined in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, although no binding or exhaustive list of criteria to be applied has been drawn up ( Limburgse Vinyl Maatschappij and Others
v Commission, cited in paragraph 78 above, paragraph 465, 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 Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 241).
107. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community (see Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 130 and the case-law cited).
108. Furthermore, the Guidelines state, inter alia, that in assessing the gravity of the infringement account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. Infringements are thus put into one of three categories: minor infringements, serious infringements and very serious infringements (first and second paragraphs of Section 1A of the Guidelines).
109. In the present case, the Commission finds, first of all, in the contested decision that the undertakings concerned concluded agreements on price targets and market sharing, and exchanged commercially sensitive information. For the Commission, these practices are, by their very nature, very serious infringements (recital 461 to and Article 1 of the operative part of the contested decision). Next, the Commission states that it is not possible to measure the actual impact of the cartel on the EEA market. The Commission further contends that, even if it is not possible to measure the actual impact of the cartel, the agreements in question were implemented by the undertakings concerned and, therefore, had an effect on the market. The Commission concludes by stating that it will not take into account the impact on the market in determining the amounts of the fines (recital 462 to the contested decision). Last, the Commission notes that the infringement covers the whole of the EEA (recital 463 to the contested decision). For those reasons, the Commission takes the view that the infringement at issue can be described as very serious (recital 464 to the contested decision).
110. Moreover, the Commission applied differential treatment to the undertakings concerned on the basis of their aggregate turnover in relation to BR and ESBR for 2001, the last full year of the infringement, except for Shell (1998) and Stomil (1999). The Commission placed the undertakings concerned into five categories, Dow being placed in the second category (starting amount of the fine: EUR 41 million) (recitals 465 to 473 to the contested decision).
111. Dow does not dispute the Commission’s finding that the infringement can be qualified as very serious within the meaning of the Guidelines, but disputes the starting amount of the fine, taking the view, in particular, that the cartel at issue was characterised by a lack of formality.
112. In that regard, first, it must be borne in mind that, under Section 1A of the Guidelines, the likely fine for a very serious infringement is more than EUR 20 million and that the starting amount of the fine imposed on Dow is the product of a certain number of factors, in particular, the volume of its sales of BR and ESBR in the EEA in 2001 (EUR 126.93 million – recital 469 to the contested decision).
113. Second, it must be observed that Dow does not in its action call in question the unlawful nature of the cartel, as set out in the contested decision, particularly in Article 1 of the operative part, namely the setting of price targets, market sharing and the exchange of sensitive commercial information. Consequently, in view of the multiplicity and the simultaneity of the objectives pursued by the cartel, and even if the cartel was relatively informal, it was none the less highly structured (see, to that effect, Groupe Danone
v Commission, cited in paragraph 88 above, paragraph 149). In particular, as regards the argument concerning the absence of enforcement mechanisms to ensure compliance with and practical implementation of the agreement, and on the assumption that Dow’s allegation in that regard were proved and could be taken into account, it must be borne in mind that Dow does not dispute the Commission’s finding that the infringement can be qualified as very serious within the meaning of the Guidelines. In that regard, it must be pointed out that the undertakings concerned agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers. Furthermore, the cartel covered the whole of the EEA. Next, it must be noted that the amount of the fine set for Dow does not exceed the cap of 10% of its turnover during the preceding business year laid down by Article 23(2) of Regulation No 1/2003, a limit which is designed to prevent the undertaking concerned from being unable to pay the fine in question (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 119). In addition, it will be recalled that the gravity of the infringement must be assessed as a whole, taking all the relevant factors of the case into account. In the present case, taking into account the factors put forward by the Commission in the contested decision, the Court considers that the circumstances alleged by Dow, assuming they were established, do not affect the level of the starting amount of the fine set by the Commission.
114. In the light of those considerations, the first part of the third plea in law raised by Dow must be rejected as unfounded.
b) Second to sixth parts: incorrect application of differentiated treatment to the basic amounts of the fines
Arguments of the parties
115. In the context of the second part of the third plea, Dow observes that the Commission applies differential treatment to the basic amounts of the fines, in order to ‘take account of the specific weight, and therefore the real impact on competition, of each undertaking’s offending conduct’ (recital 466 to the contested decision). However, the Commission states in recital 462 to the contested decision that ‘it is not possible to measure the actual impact on the EEA market of the complex of arrangements of which the infringement consists’. The Commission’s assertions are therefore contradictory. Where an infringement has no measurable impact, which is the case here, there is no reason to base individual fines on an alleged ‘capacity’ to cause damage, as the Commission contends in its pleadings. In that regard, the fourth paragraph of Section 1A of the Guidelines must be read in conjunction with the sixth paragraph of that section. Dow adds that, in Case T‑230/00 Daesang and Sewon Europe
v Commission
[2003] ECR II‑2733 and Case T‑329/01 Archer Daniels Midland
v Commission
[2006] ECR II‑3255, to which the Commission refers in its pleadings, it had been established that there was an actual impact on the market.
116. In the context of the third part of the third plea, Dow submits that, pursuant to Section 1A of the Guidelines, the Commission is required to assess the ‘actual impact’ of the infringement on the market (where it can be measured). That obligation was confirmed by this Court in Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission
[2003] ECR II‑2597 and Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897. In the present case, the Commission failed to assess the actual impact of the infringement on the market (recital 462 to the contested decision). However, the Commission concludes in the same recital that the infringement ‘did have an impact on the market, even if its actual effect is difficult to measure’. The judgments in Case T‑241/01 Scandinavian Airlines System
v Commission
[2005] ECR II‑2917 and Groupe Danone
v Commission (cited in paragraph 88 above) referred to in the contested decision indicate that the Commission may determine the actual impact of an infringement merely by estimating the probability of an impact or proving that the infringement was implemented. In the present case, the Commission does not estimate the probability of an impact, nor does it prove that an anti-competitive agreement was implemented (although it attempted to prove the implementation of the infringement in the first statement of objections). The Commission’s assertion in recital 462 to the contested decision that ‘the cartel arrangements were implemented by the European producers’ is not supported by any evidence. Recitals 148 and 203 to the contested decision, to which the Commission refers in its pleadings, do not in any way demonstrate implementation, but only unsuccessful attempts, one of which was with an undertaking in respect of which the proceedings were closed (Dwory).
117. In the context of the fourth part of the third plea, Dow contends that its right to be heard was infringed and submits, in that regard, that the Commission’s first statement of objections contained some ‘economic evidence’ as to the effects of the cartel activities. However, the Commission withdrew that statement of objections after some of the undertakings concerned, including Dow, had questioned the probative value of that evidence. The second statement of objections, on which the contested decision is based, contains no evidence in that regard. Nor does it contain any indication that any implementation of anti‑competitive agreements had had an impact on the market. The paragraphs of the second statement of objections to which the Commission refers in its pleadings are irrelevant in that regard. Consequently, Dow had no occasion to make known its views on any possible effects of the cartel on the market. However, the Commission assumed that the cartel had had an impact on the market when it applied differential treatment to the addressees of the contested decision.
118. In light of the arguments developed in the context of the second to fourth parts of the third p lea, Dow infers that the Commission was not entitled to set different basic amounts for the fines imposed on the undertakings concerned. In the present case, the Commission ought to have set a uniform basic amount. Since the basic amount of Stomil’s fine was set at EUR 5.5 million and since that amount is supposed to reflect the objective gravity of the arrangement, there is no reason to set a higher basic amount for Dow.
119. In the context of the fifth part of the third plea, which is advanced in the alternative, Dow contends that if the Commission is considered to be entitled to apply differentiated treatment to the addressees of the contested decision, in order to take account of the real impact on competition, it incorrectly relied on Dow’s turnover for BR and ESBR for 2001. The Commission thus ignores the fact that Dow’s turnover increased significantly only in June 1999 with the acquisition of Shell’s ‘synthetic rubber’ business. For roughly half of the infringement period, Dow’s position on the market was significantly smaller. Dow submits that, in recital 479 to the contested decision, the Commission took into account the fact that Dow did not own Shell’s BR and ESBR businesses during the first years of the infringement when calculating the increase for the duration of the infringement, which, however, is a separate issue. Dow adds that when it acquired Shell’s businesses it was not aware of the infringement and that, accordingly, it ought not to assume greater liability. Furthermore, in Stora Kopparbergs Bergslags
v Commission, cited in paragraph 44 above, the Court of Justice made clear that liability cannot be imputed to a company for infringements committed by a company which it has acquired when they were committed before the acquisition simply because it had itself participated in the cartel at that time. Dow concludes that the Commission ought to have taken account of the increase in its sales when calculating the basic amount of the fine as well, by basing itself on Dow’s sales in 1998 and 2001, then by calculating the average. Dow observes in that regard that its 1998 sales were significantly below Shell’s. By taking Dow’s 2001 sales as a basis for the entire infringement period, the Commission discriminated against it by comparison with Shell. Taking into account the 1998 turnover and the method which it recommends, Dow concludes that the basic amount of the fine ought to be set, in its case, at EUR 32.4 million.
120. In the context of the sixth part of the third plea, Dow contends that, on the assumption that the Commission is considered to be entitled to apply differentiated treatment to the addressees of the contested decision, in order to take account of the real impact on competition, it should nevertheless be acknowledged that the Commission gave too much weight to that factor. As the Commission itself acknowledges in recital 461 to the contested decision, the most important factor in determining the basic amount of a fine is the objective gravity (or nature) of the infringement. In the present case, the Commission set a basic amount of the fine for Dow that was six times higher than that set for Stomil, on the sole ground of the alleged difference of the actual impact of Dow’s participation in the infringement. That aspect entirely overshadows the gravity of the infringement as a factor for calculating the fine when, unless a participant played a special role, the actual impact must be the same for all undertakings. Dow adds that the sixth part of the third plea does not cover the application of multipliers for deterrence, contrary to the impression given by the Commission in its pleadings.
121. The Commission contends that the second to sixth parts of the third plea in law should be rejected. It takes the view, in essence, that it did not err in the application of differentiated treatment to the basic amounts of the fines.
Findings of the Court
– Second to fourth parts of the third plea in law
122. The Guidelines distinguish between minor infringements, serious infringements and very serious infringements (first and second paragraphs of Section 1A of the Guidelines). Furthermore, the differentiation between undertakings consists in determining, in accordance with the third, fourth and sixth paragraphs of Section 1A of the Guidelines, the individual contribution of each undertaking, in terms of actual economic capacity, to the success of the cartel for the purpose of its classification in the appropriate category (see, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission, not published in the ECR, paragraph 225; see also Case T‑410/03 Hoechst
v Commission
[2008] ECR II‑881, paragraph 360).
123. However, the individual contribution of each undertaking, in terms of actual economic capacity, to the success of the cartel must be distinguished from the actual impact of the infringement referred to in the first paragraph of Section 1A of the Guidelines. In the latter case, account is taken of the actual impact of the infringement, where this can be measured, in order to classify the infringement as a minor, serious or very serious infringement. The individual contribution of each undertaking, on the other hand, is taken into consideration in order to apply weightings to the amounts determined on the basis of the gravity of the infringement.
124. Therefore, even if there is no measurable actual impact of the infringement, the Commission can decide, in accordance with the third, fourth and sixth paragraphs of Section 1A of the Guidelines, and after having classified the infringement as minor, serious or very serious, to differentiate between the undertakings concerned.
125. Consequently, Dow’s arguments in connection with the second to fourth parts of the third plea cannot affect the Commission’s classification within the category identified, namely that of a very serious infringement.
126. In any event, as stated in paragraph 113 above, Dow does not in its action call in question the unlawful nature of the cartel, as set out in the contested decision, particularly in Article 1 of the operative part. In that regard, it follows from the description of very serious infringements in the Guidelines that agreements or concerted practices aimed in particular, as in this case, at setting target prices or the allocation of market shares may entail, solely on the basis of their very nature, the characterisation as ‘very serious’, without the Commission being required to demonstrate an actual impact of the infringement on the market (see, to that effect, Case C‑534/07 P Prym and Prym Consumer
v Commission
[2009] ECR I‑7415, paragraph 75; see also Brasserie nationale and Others
v Commission, cited in paragraph 89 above, paragraph 178; and Hoechst
v Commission, cited in paragraph 122 above, paragraph 345). Similarly, it is settled case-law that horizontal price agreements are amongst the most serious infringements under Community competition law and may, by reason of that fact alone, be classified as very serious (see, to that effect, Joined Cases T‑202/98, T‑204/98 and T‑207/98 Tate & Lyle and Others
v Commission
[2001] ECR II‑2035, paragraph 103, and Groupe Danone
v Commission, cited in paragraph 88 above, paragraph 147).
127. The Commission did not therefore make a mistake in finding that the practices at issue were, by their nature, very serious infringements, without taking account of the actual impact of the infringement on the market. It must be noted in that regard, contrary to Dow’s essential contention, that the Commission clearly stated in recital 462 to the contested decision that it would not take into account the actual impact of the infringement on the market in determining the amount of the fines.
128. As regards the argument that Dow’s right to a fair hearing has been infringed, it should be recalled that that principle requires, in particular, that the statement of objections addressed by the Commission to an undertaking on which it intends to impose a penalty for infringement of competition rules should include the essential factors taken into consideration against that undertaking, such as the facts alleged, the classification of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively during the administrative procedure brought against it (see Case C‑176/99 P Arbed
v Commission [2003] ECR I‑10687, paragraph 20 and the case-law cited). As regards, more particularly, the calculation of the fines, the Commission fulfils its obligation to respect the undertakings’ right to be heard provided that it indicates expressly in the statement of objections that it is going to consider whether it is appropriate to impose fines on the undertakings concerned and provided that it sets out the main elements of fact and of law which might entail a fine, such as the gravity and duration of the alleged infringement and the fact that the infringement was committed ‘deliberately or negligently’. In doing so, the Commission provides the undertakings concerned with the necessary material to defend themselves not only against a finding of infringement but also against the imposition of a fine ( Dansk Rørindustri and Others
v Commission, cited in paragraph 106 above, paragraph 428; see Case T‑23/99 LR AF 1998
v Commission
[2002] ECR II‑1705, paragraph 199 and the case-law cited; and Tokai Carbon and Others v Commission, cited in paragraph 122 above, paragraph 139). In the present case, suffice it to note that the Commission did not take account of the impact of the cartel on the market in determining the gravity of the infringement (recital 462 to the contested decision). In those circumstances, there cannot have been any infringement of Dow’s right to be heard in that respect.
129. Accordingly, Dow’s arguments in connection with the second to fourth parts of the third plea in law are, in all events, entirely unfounded.
130. In the light of those considerations, the second to fourth parts of the third plea in law raised by Dow must be rejected as unfounded.
– Fifth part of the third plea in law, submitted in the alternative
131. The differentiation between undertakings consists in determining, in accordance with the third, fourth and sixth paragraphs of Section 1A of the Guidelines, the individual contribution of each undertaking, in terms of actual economic capacity, to the success of the cartel for the purpose of its classification in the appropriate category (see, to that effect, Tokai Carbon and Others
v Commission, cited in paragraph 122 above, paragraph 225; see also Hoechst
v Commission, cited in paragraph 122 above, paragraph 360). Specifically, the sixth paragraph of Section 1A of the Guidelines allows account to be taken ‘of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type’. In that context, where the Commission divides undertakings by categories, it must comply with the principle of equal treatment under which comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified (Case T‑213/00 CMA CGM and Others v Commission
[2003] ECR II‑913, paragraph 406; Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission
[2004] ECR II‑1181, paragraph 219; and Degussa
v Commission, cited in paragraph 116 above, paragraph 324). Moreover, according to the case-law, the amounts of fines must at least be proportionate in relation to the factors taken into account in assessing the gravity of the infringement ( Tate & Lyle and Others
v Commission, cited in paragraph 126 above, paragraph 106; Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission, paragraph 219; and Degussa
v Commission, cited in paragraph 116 above, paragraph 324). Consequently, where the Commission divides the undertakings concerned into categories for the purpose of setting the amount of the fines, the thresholds for each of the categories thus identified must be coherent and objectively justified ( CMA CGM and Others
v Commission, paragraph 416, and Degussa
v Commission, cited in paragraph 116 above, paragraph 325). Last, it has consistently been held that the criteria for assessing the gravity of an infringement may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed as well as the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of setting a fine, for the Commission to have regard both to the overall turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the setting of an appropriate fine cannot be the result of a simple calculation based on overall turnover (see judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others
v Commission, not published in the ECR, paragraph 139 and the case-law cited).
132. Dow specifically challenges the use of its turnover in respect of BR and ESBR for 2001. It maintains, in essence, that that turnover is not appropriate since its turnover on the relevant markets had increased considerably following the purchase in 1999 of Shell’s businesses on those markets.
133. In this regard, to the extent to which reliance is to be placed on the turnover of the undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible. Consequently, an individual undertaking cannot compel the Commission to rely, in its case, upon a period different from that used for the other undertakings, unless it proves that, for reasons peculiar to it, its turnover in the latter period does not reflect its true size and economic power or the scale of the infringement which it committed (Case T‑175/05 Akzo Nobel and Others
v Commission, cited in paragraph 131 above, paragraph 142).
134. Yet Dow does not submit any detailed evidence, except in relation to a certain increase in turnover between 1999 and 2001, to prove that its turnover in respect of BR and ESBR for 2001 does not reflect its true size and economic power or the scale of the infringement which it committed.
135. For the sake of completeness, it must be noted that the real impact of the purchase of Shell’s BR and ESBR businesses on Dow’s turnover is uncertain, given the evidence produced to this Court. In particular, it is apparent from Table 3 in recital 65 to the contested decision that Dow’s turnover in relation to BR and ESBR increased by EUR 32 million between 1998 and 2000, whereas Shell’s turnover was EUR 86 million in 1999. In the same period, Bayer’s turnover in respect of BR and ESBR, which did not reflect another company’s business, increased by almost EUR 20 million. Furthermore, Dow’s turnover in respect of BR and ESBR also increased by more than EUR 23 million between 2000 and 2001, that is after the purchase of Shell’s businesses.
136. Moreover, the increase in Dow’s turnover after the purchase of Shell’s BR and ESBR businesses in 1999 did not result in any adjustment of its position in relation to the other competitors. Dow remained, in 2000 and 2001, in third place in terms of turnover, behind EniChem and Bayer. The same applies if the method advocated by Dow at the hearing is used, namely the average of turnover in 1998 and 2001. In that case, Dow would continue to be behind EniChem and Bayer and ahead of Shell.
137. In addition, it must be noted that the Commission nevertheless took into consideration the special situation referred to by Dow in connection with the increase applied for the duration of the infringement. More specifically, the Commission stated, in recital 479 to the contested decision, that Dow Chemical should be held liable for the infringement in respect of the period from 1 July 1996 to 28 November 2002, a period of six years and four months. That infringement period should result in a 60% increase of the starting amount of the fine. However, in order to take account of the fact that Dow did not own Shell’s BR and ESBR businesses during the first three years of the infringement and the fact that Shell was also liable for the infringement in respect of that period, the Commission decided, in the same recital to the contested decision, to increase the starting amount of the fine to be imposed on Dow Chemical by only 50%. The Commission took the same circumstances into account in reducing the increase applicable in respect of the duration of the infringement from 50 to 40% for Dow Deutschland (recital 480 to the contested decision). Dow did not produce any evidence to suggest that the Commission made a manifest error in choosing that method.
138. In the light of those considerations, the fifth part of the third plea in law raised by Dow must be rejected as unfounded.
– Sixth part of the third plea in law
139. Although the arguments expounded by Dow are somewhat unclear, it may be inferred from its written submissions that it takes the view, in essence, that the Commission attached too much importance to the ‘specific weight’ of the undertakings belonging to the cartel, by comparison with the gravity of the infringement. Consequently, the Commission’s differentiation between the undertakings concerned, when the gravity of the infringement was the same in all cases, is not justified.
140. It must be concluded that Dow is in fact alleging breach of the principle of equal treatment. Yet it does not deny that there are differences – which, in some cases, are considerable – between the undertakings concerned with regard to their turnover for BR and ESBR for the years referred to by the Commission. Furthermore, it is clear from the sixth paragraph of Section 1A of the Guidelines that the Commission can apply weightings to the amount of the fine to take account of the specific weight of the offending conduct of each undertaking.
141. Accordingly, by setting the starting amount of the fine at a higher level for those undertakings with a relatively larger market share than the others in the relevant market, the Commission took account of the actual influence of the undertaking on that market. That factor is the expression of the higher degree of responsibility of the undertakings with a relatively larger market share than the others in the relevant market for the damage caused to competition and, in the final analysis, to consumers by forming a secret cartel (Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraph 230).
142. In the light of those considerations, the sixth part of the third plea in law raised by Dow must be rejected as unfounded.
c) Seventh and eighth parts: unlawful application of a multiplier for deterrence
Arguments of the parties
143. In the context of the seventh part of the third plea in law, Dow submits that, since the contested decision ought not to have been addressed to Dow Chemical (first plea), the Commission ought not to have taken that company’s turnover into account when determining the multiplier for deterrence, but only the turnover of the Dow Chemical subsidiaries which directly participated in the infringement. Dow concludes that the Commission ought to have applied to it a multiplier close to 1. The fines imposed on the three companies of its group should therefore be reduced accordingly.
144. In the context of the eighth part of the third plea in law, Dow submits that even if Dow Chemical’s turnover ought to be taken into account, the multiplier of 1.75 chosen by the Commission is excessive. Compared with the multiplier applied to Enichem (2) and that applied to Shell (3), the multiplier applied to Dow ought to be lower given the significantly higher turnover of the two aforementioned companies. In particular, Dow submits that the Commission applied a multiplier to Shell which differs by reference to the multiplier applied to Dow by an amount five times greater than the difference between Dow’s multiplier and Bayer’s multiplier. However, the difference between Shell’s turnover and Dow’s turnover is more than 20 times greater than the difference between Dow’s turnover and Bayer’s turnover. Furthermore, referring to Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission, cited in paragraph 131 above, and Degussa
v Commission, cited in paragraph 116 above, Dow maintains that the principle of proportionality was not observed since there is a difference of only 0.25 between the multiplier fixed in its case and that applied to Enichem, whose turnover was almost twice that of Dow Chemical. In comparison, Dow’s multiplier is 0.25 points higher than Bayer’s, whereas Dow Chemical’s turnover is not twice that of Bayer. Accordingly, Dow’s multiplier ought to have been closer to Bayer’s, that is to say closer to 1.5. In that case also, the fines imposed on Dow ought to be reduced accordingly.
145. The Commission contends that the seventh and eighth parts of the third plea in law should be rejected. It maintains that it did not make a mistake in the application of a multiplier for deterrence.
Findings of the Court
146. The seventh part of the third plea in law raised by Dow is based on the arguments developed in connection with the first plea. Since the first plea in law must be rejected as unfounded, the seventh part of the third plea in law raised by Dow must, in consequence, be rejected as being equally unfounded.
147. With regard to the eighth part of the third plea in law raised by Dow, it will be recalled that the Guidelines provide that, in addition to the nature of the infringement, its actual impact on the market and the size of the relevant geographic market, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect (fourth paragraph of Section 1A of the Guidelines).
148. The Commission’s power to impose fines on undertakings which, intentionally or negligently, commit an infringement of Article 81 EC is one of the means given to it with which to carry out the task of supervision conferred on it by Community law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that, in assessing the gravity of an infringement for the purpose of setting the amount of the fine, the Commission must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community ( Musique Diffusion française and Others
v Commission, cited in paragraph 113 above, paragraphs 105 and 106; Case T‑31/99 ABB Asea Brown Boveri
v Commission
[2002] ECR II‑1881, paragraph 166; and Groupe Danone
v Commission, cited in paragraph 88 above, paragraph 169).
149. This requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed. This is so that the fine is not rendered negligible or excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to ensure that the fine is effective and, second, respect for the principle of proportionality. A large undertaking, owing to its considerable financial resources by comparison with those of the other members of a cartel, can more readily raise the necessary funds to pay its fine, which, if the fine is to have a sufficiently deterrent effect, justifies the imposition, in particular by the application of a multiplier, of a fine proportionately higher than that punishing the same infringement committed by an undertaking without such resources (see, to that effect, Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission, cited in paragraph 131 above, paragraphs 241 and 243; see also ABB Asea Brown Boveri
v Commission, cited in paragraph 148 above, paragraph 170; and Case T‑15/02 BASF
v Commission
[2006] ECR II‑497, paragraph 235).
150. It should be added that the Court of Justice has recognised in particular the relevance of taking into account the overall turnover of each undertaking participating in a cartel in setting the amount of the fine (see, to that effect, Sarrió
v Commission, cited in paragraph 78 above, paragraphs 85 and 86; Case C‑57/02 P Acerinox
v Commission [2005] ECR I‑6689, paragraphs 74 and 75; see also Case C‑289/04 P Showa Denko
v Commission
[2006] ECR I‑5859, paragraph 17).
151. Last, it must be observed that the objective of deterrence which the Commission is entitled to pursue when setting fines is intended to ensure that undertakings comply with the competition rules laid down by the Treaty in respect of the conduct of their activities within the Community or the EEA. It follows that the deterrence factor which may be included in the calculation of the fine is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. That principle applies, in particular, where the Commission has determined a ‘deterrence multiplier’ with which the fine imposed on an undertaking is adjusted (see, to that effect, Showa Denko
v Commission, cited in paragraph 150 above, paragraphs 23 and 24).
152. In the present case the Commission found that, within the category of very serious infringements, the scale of fines made it possible to set the fines at a level which would ensure that they had a sufficiently deterrent effect, taking into account the size of each undertaking. On the basis of the worldwide turnover of the undertakings concerned in 2005, the Commission noted that there was a considerable difference in size between, on the one hand, Kaučuk (turnover: EUR 2.718 billion) and Stomil (turnover: EUR 38 million) and, on the other, the other undertakings concerned, particularly Bayer (turnover: EUR 27.383 billion), the first of the large undertakings covered by the contested decision. On that basis, and taking the circumstances of the present case into account, the Commission concluded that no multiplier for deterrence should be applied in respect of Kaučuk and Stomil, and that a multiplier of 1.5 was appropriate in respect of Bayer. Last, still on that basis, and taking the circumstances of the present case into account, the Commission applied multipliers of 1.75 in relation to Dow (turnover: EUR 37.221 billion), 2 in relation to EniChem (turnover: EUR 73.738 billion) and 3 in relation to Shell (turnover: EUR 246.549 billion) (recital 474 to the contested decision).
153. In so far as Dow relies in its arguments on a breach of the principle of equal treatment, it is apparent from the contested decision that the multipliers for deterrence chosen by the Commission were determined according to the relative size of the undertakings concerned. Dow does not dispute the turnover figures referred to by the Commission in the contested decision. In particular, it does not deny that it was larger than Bayer and smaller than EniChem in 2005. It is, therefore, consistent and objectively justified for the multiplier for deterrence chosen for the calculation of the fines imposed on Dow to be higher than that chosen for the calculation of the fine imposed on Bayer and lower than that chosen for the calculation of the fine imposed on EniChem.
154. Furthermore, it must be pointed out that worldwide turnover for 2005 was EUR 27.383 billion for Bayer and EUR 37.221 billion for Dow (35.93% more than Bayer). That being the case, the fact that the multiplier relating to Dow’s fines was increased by 16.66% by comparison with that chosen when determining Bayer’s fine (1.75 as opposed to 1.5) does not constitute a breach of the principle of equal treatment. On the contrary, the Commission would have been entitled on that basis to select an even higher multiplier for Dow. As to the remainder, and in so far as, by its arguments, Dow requests the Court to examine the lawfulness of the amounts of the fines set for the large undertakings with which Dow draws comparisons, particularly with regard to the multiplier chosen for EniChem, it is apparent from the contested decision that the multiplier chosen for Dow was calculated on the basis of that chosen for Bayer, not on the basis of those chosen for EniChem or Shell. Dow’s arguments are therefore ineffective in that regard. Moreover, it must be pointed out that the Commission has a discretion when determining the amount of the fine and is not required to apply a precise mathematical formula (see Case T‑304/02 Hoek Loos
v Commission
[2006] ECR II‑1887, paragraph 68 and the case-law cited). In the present case, the Commission did not, therefore, make a manifest error of assessment in taking into consideration the difference in the economic capacity of the undertakings concerned when selecting the multipliers that it applied (see, to that effect, Case T‑175/05 Akzo Nobel and Others
v Commission, cited in paragraph 131 above, paragraph 155).
155. Last, in so far as Dow relies in its arguments on a breach of the principle of proportionality, it must be held that Dow has not produced any detailed evidence to suggest that the multiplier chosen in its case is disproportionate in relation to the gravity of the infringement and to the objective of ensuring that fines are set at a level that serves as a deterrent.
156. In the light of those considerations, the eighth part of the third plea in law raised by Dow must be rejected as unfounded.
d) Ninth part: error in the increase for the duration of the infringement
Arguments of the parties
157. In the context of the ninth part of the third plea in law, Dow recalls that the Commission took account of the fact that Dow did not own Shell’s BR and ESBR businesses during the first years of the infringement when calculating the increase for the duration of the infringement. The Commission thus applied an increase for a long-term infringement of 50% instead of 60% for Dow Chemical and an increase of 40% instead of 50% for Dow Deutschland (recitals 479 and 480 to the contested decision).
158. Dow maintains, however, that the Commission ought to have applied even lower percentages. By assuming that each year of infringement justified an increase of 10% and since Dow’s ‘synthetic rubber’ business had more than doubled with the acquisition of Shell’s business after approximately three years, the Commission ought to have applied a reduction of 5% per year for each of the three years, that is to say, a total reduction of 15%. Given that the Commission would normally have increased Dow Chemical’s fine by 60% and Dow Deutschland’s fine by 50%, the appropriate increase for a long-term infringement would amount to 45% for Dow Chemical and 35% for Dow Deutschland. The fines which Dow Chemical and Dow Deutschland were ordered to pay should therefore be reduced accordingly.
159. As regards the Commission’s assertion in its written submissions to the Court that it compared Dow Chemical’s sales in 1998 and in 2000, Dow submits that that comparison fails to take into account the fact that the turnover derived from Dow’s ‘synthetic rubber’ business declined in 1999 and 2000. Consequently, the increase in turnover in 2000 achieved as a result of the acquisition of Shell’s ‘synthetic rubber’ business was higher than the 30% difference between 1998 turnover and turnover in 2000. In fact, Dow more than doubled its turnover for the products in question by acquiring Shell’s ‘synthetic rubber’ business. Dow refers, in particular, to the turnover realised by Dow and Shell for the products in question for 1998. Accordingly, instead of increasing the fine by 7% for each of the first three years of the infringement, as the Commission indicates in its pleadings, it ought to have increased the fine by 5% at most for each of those years.
160. The Commission contends that the ninth part of the third plea in law should be rejected. It maintains, in particular, that the method applied to take account of the changes to Dow’s structure is coherent and logical.
Findings of the Court
161. Under Article 15(2) of Regulation No 17, the duration of the infringement is one of the factors to be taken into consideration when determining the amount of the fine to be imposed on undertakings which have infringed the competition rules.
162. In relation to the duration of the infringement, the Guidelines distinguish between infringements of short duration (in general, less than one year), where no increase should be made to the starting amount determined for gravity, infringements of medium duration (in general, one to five years), where that amount may be increased by up to 50%, and infringements of long duration (in general, more than five years), where that amount may be increased by up to 10% per year (first to third indents of the first paragraph of Section 1B of the Guidelines).
163. In the present case, as observed in paragraph 137 above, the Commission took into consideration, in the context of the increase applied for the duration of the infringement, the special situation associated with Dow’s purchase of Shell’s BR and ESBR businesses in 1999. Dow does not dispute the method chosen by the Commission to take account of that special situation. Dow’s arguments are aimed, in essence, at establishing that that special situation ought to have resulted in a smaller increase to take account of the duration of the infringement. However, on the assumption that Dow’s arguments can indeed be taken into account in connection with the Commission’s calculation, they are based on a premiss that is either uncertain or even false, or which is unsupported by evidence. In particular, Dow submits that its ‘synthetic rubber’ business more than doubled with the acquisition of Shell’s business after approximately three years. Apart from the fact that that assertion is not based on any detailed evidence, it must be noted that Dow’s BR and ESBR turnover, as shown in the contested decision, did not double between 1998 and 2001. Furthermore, as regards Dow’s assertion that the turnover derived from its ‘synthetic rubber’ business declined in 1999 and 2000, this is not supported by any evidence.
164. In those circumstances, Dow’s arguments are not capable of affecting the lawfulness of the contested decision in that regard.
165. In the light of those considerations, the ninth part of the third plea in law raised by Dow must be rejected as unfounded, as, therefore, must the third plea in its entirety.
166. It follows, for all those reasons, that the second plea in law must be upheld and, in consequence, Article 1 of the contested decision must be annulled in so far as Dow Deutschland is found to have participated in the infringement at issue from 1 July 1996 instead of from 2 September 1996, and that the remainder of the claim for annulment in part of the contested decision must be rejected.
B – Claim for adjustment of the amount of the fine
167. In so far as the pleas in law on which Dow relies are advanced in support of its claims for an adjustment of the amount of the fine, it must be noted that, with regard to the second plea, which is to be upheld, it is not necessary to adjust the amount of the relevant fine since, as Dow acknowledged at the hearing, the Commission’s error cannot have any effect on the increase applied for the duration of the infringement.
168. With respect to the other pleas in law on which Dow relies, it is sufficient to note that, as is apparent from the foregoing, those pleas are unfounded and cannot, therefore, result in a reduction of the fine.
169. Accordingly, the claim for adjustment of the amount of the fine must be rejected.
Costs
170. Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared.
171. As the action has essentially been unsuccessful, the Court considers it fair, having regard to the circumstances of the case, to order the applicants to bear their own costs and to pay nine tenths of the costs incurred by the Commission, and the Commission to bear one tenth of its own costs.
172. With regard to the applicants’ claim that the Commission should be ordered to pay the costs which they incurred in providing a bank guarantee in lieu of the amount of the fine imposed on them, it must be held that those costs are not expenses necessarily incurred by the parties for the purpose of the proceedings and are not, therefore, recoverable costs within the meaning of Article 91 of the Rules of Procedure. Accordingly, the applicants’ claim in that regard is inadmissible.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls Article 1(b) of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and E mulsion Styrene Butadiene Rubber) in so far as Dow Deutschland Inc. is found to have participated in the infringement at issue from 1 July 1996 to 27 November 2001 instead of from 2 September 1996 to 27 November 2001;
2. Dismisses the action as to the remainder;
3. Orders The Dow Chemical Company, Dow Deutschland, Dow Deutschland Anlagengesellschaft mbH and Dow Europe GmbH to bear their own costs and to pay nine tenths of the costs incurred by the European Commission;
4. Orders the Commission to bear one tenth of its own costs.