62007TJ0039_EN
Parties
Grounds
Operative part
Parties
In Case T‑39/07,
Eni SpA,
established in Rome (Italy), represented by G.M. Roberti and I. Perego, lawyers,
applicant,
v
European Commission,
represented by V. Di Bucci, G. Conte and V. Bottka, acting as Agents,
defendant,
APPLICATION for annulment, so far as ENI SpA 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, in the alternative, annulment or reduction of the fine imposed on ENI,
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 12 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 (collectively ‘Dow’) (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).
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).
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 leave 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 of the EEA Agreement 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
31. By application lodged at the Registry of the Court on 16 February 2007, Eni brought the present action.
32. By decision of the President of the Court of 31 March 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. In the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court requested the parties to answer certain questions and to produce certain documents. The parties complied with those requests within the periods prescribed.
35. The parties presented oral argument and their answers to the questions put by the Court at the hearing on 12 October 2009.
36. Eni claims that the Court should:
– annul the contested decision in so far as it imputes to the applicant liability for the conduct which is the subject-matter of the fine at issue;
– in the alternative, annul or reduce the fine imposed on the applicant in Article 2 of the contested decision;
– order the Commission to pay the costs.
37. The Commission contends that the Court should:
– dismiss the action;
– order Eni to pay the costs.
Law
38. Eni relies on two pleas in law in support of its claims. By its first plea, Eni complains of the fact that the Commission held it liable for the infringement. By its second plea, Eni maintains that the Commission incorrectly set the amount of the fine.
A – Claim for partial annulment of the contested decision
1. First plea in law: unlawful imputation of the infringement to Eni
39. Eni states that, according to the contested decision, a 100% holding in a company leads to the presumption that the parent company exercises a decisive influence over the conduct of its subsidiary, which precludes that subsidiary from enjoying genuine independence in defining its own commercial policy. In that case, according to Eni’s reading of the contested decision, the burden of proof is reversed, and the undertaking concerned then has to show that the presumption arising from a controlling interest is unfounded.
40. Eni’s first plea consists of four parts. In the first part, Eni maintains that the Commission applied an incorrect criterion when assessing the liability of a parent company. In the second part, Eni submits that the Commission wrongly found that the applicant was strictly liable. In the third part, Eni states that it provided, during the administrative procedure, evidence which should have led the Commission to consider that it had not exercised any influence on the commercial policies of Syndial/Polimeri. In the fourth part, Eni states that the Commission infringed the principle of limited liability of capital companies and the general principles governing liability.
a) First part: misapplication of the conditions for imputing the infringement
Arguments of the parties
41. Pointing out that the burden of proving an infringement of the competition rules lies with the Commission (Case C-185/95 P Baustahlgewebe v Commission
[1998] ECR I‑8417 and Article 2 of Regulation No 1/2003), Eni considers that the approach it took in the contested decision is contrary to the case-law and to its own practice.
42. With regard to the case-law, referring first to the judgments given in Stora Kopparbergs Bergslags
v Commission by the General Court (Case T-354/94 Stora Kopparbergs Bergslags v Commission
[1998] ECR II‑2111) and, on appeal, by the Court of Justice (Case C-286/98 P Stora Kopparbergs Bergslags
v Commission [2000] ECR I‑9925 (‘ Stora ’), Eni considers that those judgments confirmed the principle that liability for the conduct of a subsidiary can only be imputed to the parent company where the subsidiary does not independently decide its own conduct on the market, but in essentials follows directives of the parent company ( Stora Kopparbergs Bergslags
v Commission ). In that regard, the Court of Justice confirmed that the mere fact of holding capital cannot found liability for infringements of competition law ( Stora ). Eni also refers to the Opinion of Advocate General Mischo in Stora
(ECR I‑9928), which was followed by the Court. In that case, the applicant’s conduct during the administrative procedure and the participation in the cartel of several companies in the Stora Group suggested that it was sufficient for Stora to own all the shares of its subsidiaries to be held liable for their actions. Eni concludes from that that only very specific circumstances, and in any event additional circumstances, give grounds for establishing the liability of the company at the head of the group, and that it is not necessary to carry out further investigations in order to ascertain whether it actually exerted a decisive influence on the conduct of its subsidiary which infringes Article 81 EC.
43. The Court of Justice has reached similar conclusions in subsequent cases in which a similar question was raised. Eni refers, in that regard, to the judgments in Case C-196/99 P Aristrain v Commission
[2003] ECR I-11005 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. Those judgments, although they concern sister companies, are relevant in so far as they confirm that, in order to determine which is the liable legal person within a group, the Commission must analyse in depth all the relations between the undertakings in that group. Eni also refers to the judgment in Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289. Contrary to what the Commission maintains, that judgment is not unfavourable to Eni’s position. It confirms that merely holding all the capital is not the same as actually exerting an influence on management.
44. The General Court likewise did not hold that a 100% holding in the company which actually committed the infringements of the competition rules provides grounds, in itself, for attributing liability to the parent company, in the absence of other evidence to show that the parent company actually exercised the powers which it derives from its holding. Eni refers, in that regard, to several ‘indicia’ confirming the presumption drawn from the holding of capital, which have been identified by the Court in certain cases.
45. Eni acknowledges that, in two recent judgments, the Court has held that, when a parent company held 100% of the shares in a subsidiary which had been found guilty of unlawful conduct, there was a rebuttable presumption that the parent company actually exerted a decisive influence over its subsidiary’s conduct and that, therefore, it was for the parent company to reverse that presumption by adducing evidence to establish that its subsidiary was independent (Case T-314/01 Avebe
v Commission
[2006] ECR II‑3085 and Case T-330/01 Akzo Nobel
v Commission
[2006] ECR II‑3389). However, a careful reading of those two judgments shows that the Commission decisions imputing to the parent companies liability for the infringements of competition law committed by their subsidiaries were deemed lawful, in that regard, only in the light of a series of more specific factors, which Eni points out, which were not connected merely to the holding of capital.
46. As for the judgment in Case T-43/02 Jungbunzlauer
v Commission [2006] ECR II‑3435, referred to by the Commission in its pleadings, the matter of the presumption of liability was addressed only indirectly and solely for the purpose of affirming that it does not apply in this case. Moreover, Eni points out that the parent company Jungbunzlauer Holding AG was not involved in the infringement which was penalised, even though it held all the capital of the applicant in that case and of Jungbunzlauer GmbH.
47. Eni infers that, in the light particularly of Avebe
v Commission, cited in paragraph 45 above, any presumption of ‘decisive influence’ of the parent company over the wholly-owned subsidiary is possible only if the holding of the whole of the capital is supported by other ‘sufficiently significant indicia’. In any event, the company concerned can always ‘rebut that assumption by providing the Commission with sufficient evidence during the administrative procedure’ ( Akzo Nobel
v Commission, cited in paragraph 45 above).
48. The approach taken by Eni was confirmed, moreover, in Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others
v Commission
[2007] ECR II‑947. That judgment expressly states that the Commission’s argument that the presumption drawn from a 100% shareholding supports, on its own, the conclusion that the parent company is liable is not legally founded. A 100% shareholding may indeed constitute an indication of a decisive influence, but it is not in itself sufficient evidence thereof. According to that judgment, in such a case, something more than the extent of the shareholding must still be shown.
49. As regards the Commission’s previous practice in taking decisions, Eni points out that, until the adoption of the Commission’s decision of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/37.773 – MCAA; ‘the MCAA decision’), a company had never been held liable for infringement of Article 81 EC merely because it controlled another company. In the absence of additional evidence, the Commission did not impute or extend liability to the company at the head of the group.
50. Eni refers, in particular, to the Commission’s decision of 16 December 2003 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.240 Industrial tubes) (summary in OJ 2004 L 125, p. 50), and to the Commission’s decisions of 20 October 2004 (Case COMP / C.38.238/B.2 – Raw tobacco – Spain) and of 20 October 2005 (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) relating to proceedings pursuant to Article 81 EC. Eni notes the lessons it draws from those decisions, for which a detailed examination was provided in the second statement of objections.
51. It is apparent from those decisions that the Commission’s practice was, unequivocally – at least until 2005 –, not to attribute decisive importance to the fact that a parent company wholly owned an undertaking which had itself participated in an infringement in order to determine the influence which it had had on that subsidiary’s commercial policy. A 100%, or almost 100%, shareholding ‘reduces’ the burden of the proof which the Commission has to furnish but has never eradicated it. Eni then mentions evidence to which the Commission has given particular importance in other decisions. None of that evidence exists in the links between Eni and Polimeri or Syndial.
52. Moreover, Eni states that it is aware of the case-law which rules out, in the application of fines in respect of competition, any challenge based on the Commission’s previous decision-making practice. However, the General Court has held that, even when applying that provision (in that particular case Article 15 of Regulation No 17) to each particular case, the Commission must observe general principles of law, which include the principle of equal treatment as interpreted by the Community Courts (Case T‑59/02 Archer Daniels Midland
v Commission
[2006] ECR II‑3627). The discretion which the Commission purports to exercise is therefore still limited by the observance of fundamental principles. Moreover, it is necessary to differentiate between setting the amount of the fine, for which the Commission has discretion, and identifying the person or persons liable for an infringement. In the latter case, the Commission does not have any discretion. That is confirmed by the Opinion of Advocate General Kokott in Case C‑280/06 ETI and Others
[2007] ECR I‑10893, I‑10896). It cannot therefore invoke that power in order to disregard its own previous practice in taking decisions. Finally, Eni points out that the Commission’s change in practice is not accompanied by the adequate and specific reasoning which is required when the institution seeks to depart from a previously established practice. Eni considers that such reasoning is required a fortiori in the present case, because this new policy results in the imputation of liability to persons who have played no part in the infringements which are being penalised (Case T-38/92 AWS Benelux
v Commission
[1994] ECR II‑211).
53. In conclusion, Eni considers that the Commission, in so far as it imputed liability for the offending conduct to Eni solely on the basis of the presumption that it exercised a decisive influence over Polimeri owing to its 100% shareholding in that company, infringed the rules relating to the liability of parent companies for infringements committed by their subsidiaries, as defined by the Community case‑law in relation to Articles 81 EC and 82 EC, and Article 2 of Regulation No 1/2003, which impose on the Commission the burden of proving infringements of the competition rules.
54. With regard to the ‘other factors’ in the contested decision, referred to by the Commission in its pleadings, Eni states, first of all, that the reporting lines referred to were situated in and confined to the subsidiaries, without extending to the companies above. The Commission merely points out that the parent company enjoyed normal rights and powers relating to the appointment of the board of directors. It is therefore not a question of a separate element of control. The fact that Eni never moved away from its activities in the chemical sector likewise does not constitute such an element. That affirmation, which makes no sense, furthermore does not appear in the contested decision. Finally, as regards the ‘systematic reorganisations’ referred to by the Commission, they were put forward in the contested decision to contest the relevance of a factor put forward by Eni itself. Moreover, those reorganisations show that non-essential activities, among them chemical activities, remained within different companies, unlike other sectors.
55. The Commission contends that the first part of the first plea in law should be rejected. It maintains, in essence, that where a parent company has a 100% shareholding in a subsidiary, there is a presumption that the parent company exerts decisive influence over the conduct of its subsidiary.
Findings of the Court
56. The Commission states in the contested decision that a parent company may be regarded as liable for the unlawful conduct of a subsidiary where the subsidiary does not independently decide on its conduct on the market. The Commission refers in that regard, in particular, to the concept of an 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 that 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).
57. The Commission goes on to find EniChem SpA liable for its direct participation in the infringement. It states that Eni’s business in the relevant products was initially carried out by EniChem Elastomeri, indirectly controlled by Eni through its subsidiary EniChem SpA. As pointed out in paragraph 4 above, 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 BR and ESBR 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 (recitals 26 to 32 and 365 to 367 to the contested decision).
58. Finally, the Commission points out that Eni controlled, directly or indirectly, almost 100% of the capital of EniChem Elastomeri, EniChem SpA, Syndial and Polimeri, several factors confirming, in the Commission’s view, that it could be presumed that Eni had exercised a decisive influence on the conduct of its subsidiaries. Moreover, noting inter alia that Polimeri had taken over the strategic chemical business of EniChem SpA on 1 January 2002 and that there was a serious risk that, when the contested decision was implemented, Syndial would not have sufficient assets to pay the fine, the Commission considered that Polimeri must be held liable for Syndial’s conduct and decided not to address the contested decision to Syndial. The Commission concluded that the contested decision must be addressed to Polimeri and Eni, which must be held jointly and severally liable for the infringement (recitals 365 to 401 to the contested decision).
59. The first part of the first plea raised by Eni is based, in essence, on the legal premiss that there is no presumption that a parent company which has a 100% shareholding in its subsidiary exerts decisive influence over its conduct.
60. It must be observed, in that regard, that Community competition law refers to the activities of undertakings and that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The Court of Justice has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement. The infringement of Community competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (see Case C-97/08 P Akzo Nobel and Others
v Commission
[2009] ECR I-8237, paragraphs 54 to 57 and the case-law cited).
61. Furthermore, it is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law previously mentioned. Thus, the fact that a parent company and its subsidiary constitute a single undertaking enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the parent company in the infringement (see Akzo Nobel and Others
v Commission, cited in paragraph 60 above, paragraphs 58 and 59 and the case-law cited).
62. 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 company exercises a decisive influence over the commercial policy of the subsidiary. The Commission will subsequently 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. While it is true that, in paragraphs 28 and 29 of Stora, cited in paragraph 42 above, the Court of Justice referred not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which the General Court had based its reasoning and not to make the application of the above presumption subject to the production of additional indicia relating to the actual exercise of influence by the parent company (see Akzo Nobel and Others
v Commission, cited in paragraph 60 above, paragraphs 60 to 62 and the case-law cited).
63. It follows from this that, contrary to Eni’s contention, there is a rebuttable presumption that a parent company which has a 100% shareholding in its subsidiary exercises a decisive influence over the conduct of its subsidiary. Eni’s legal premiss is therefore incorrect.
64. As regards the Commission’s previous practice in taking decisions, put forward by Eni, and in so far as Eni 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 paragraphs 60 to 62 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 considered, in its previous practice in taking decisions, that the circumstances of the case did not justify imputing the conduct of a subsidiary to its parent company does not mean that it is required to make the same assessment in a subsequent decision (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
[1999] ECR II‑931 (‘ PVC II ’), 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).
65. In so far as, by its arguments relating to the previous practice in taking decisions, Eni alleges infringement of the Commission’s obligation to state reasons, it need only be said that, in the light of the factors referred to in the contested decision (set out in paragraphs 56 to 58 above), the Commission provided an adequate explanation of the reasons why it had decided to impute to Eni the conduct of its subsidiaries.
66. Finally, in so far as, by its arguments relating to the previous practice in taking decisions, Eni alleges infringement of the principle of legal certainty, it should be pointed out that the Commission’s practice, as it emerges from the present case, is based on a correct interpretation of Article 81(1) EC. The principle of legal certainty cannot therefore stand in the way of any reorientation of the Commission’s decision-making practice (see, to that effect, Case T-99/04 AC ‑ Treuhand
v Commission
[2008] ECR II‑1501, paragraph 163).
67. In the light of those considerations, the first part of the first plea in law raised by Eni must be rejected as unfounded.
b) Second part: misapplication of strict liability
Arguments of the parties
68. According to Eni, the Commission, in the contested decision, goes even further than a simple presumption of imputability to the parent company of any infringements committed by its wholly-owned subsidiaries and envisages a pure and simple strict liability of the parent company, affirmed by an irrebuttable presumption. That approach is contrary both to Article 81 EC and to the general principles concerning the individual nature of liability and penalties.
69. Eni points out, in particular, that the Commission stated that, in general, the points of rebuttal put forward were essentially irrelevant. That position shows that the effect of the contested decision is to create an irrebuttable liability. The Commission thus considered irrelevant the lack of information flows between the subsidiaries and the parent company, the lack of cross-management between the various companies in the group, the fact that Eni operated merely as a financial holding company with regard to the undertakings in the chemical sector and even the question of the knowledge which the company at the head of the group had of possible infringements of competition law committed by its subsidiaries.
70. The fact that Eni appointed, ‘directly or indirectly’, ‘most, if not all, of the board of directors’ of its subsidiaries constitutes, for the Commission, sufficient evidence in itself for deciding that the alleged infringements of the competition rules committed by Syndial/Polimeri are imputable to Eni. However, a 100% shareholding (or even a majority shareholding) naturally implies such a power. Eni therefore cannot see what refuting evidence could rebut that presumption.
71. The MCAA decision (see paragraph 49 above), which Eni analyses, shows a radicalisation of the Commission’s intention to make the liability of parent companies a strict liability. That constitutes an infringement of the fundamental principles of the individual nature of liability and penalties, since the liability of the parent company is based merely on the holding of shares between legally different persons. It follows that it is also an infringement of the very principle of legality.
72. It is true that the principle of individual liability should be implemented in a different way when it is applied in administrative proceedings to legal persons, in respect of which it is not possible to speak of a culpable intention in the strict sense. That being so, even collective entities have ‘the capacity to infringe the rules to which they are subject’, the ‘corollary [being] clear: a legal person cannot be imputed with an infringement which it has not carried out’ (Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission
[2004] ECR I‑123, I‑133). As the case-law has confirmed on several occasions, it is true that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, responsibility for committing those infringements is personal in nature (Case C‑49/92 P Commission
v Anic Partecipazioni
[1999] ECR I‑4125) and that legal persons may be penalised only for acts imputed to them specifically (Joined Cases C‑65/02 P and C-73/02 P ThyssenKrupp
v Commission [2005] ECR I‑6773). The General Court drew attention to those principles in Case T-279/02 Degussa v Commission
[2006] ECR II‑897 and Case T-304/02 Hoek Loos
v Commission [2006] ECR II‑1887. The identification of the person to which an infringement is imputable can never disregard the individual nature of liability, which must necessarily be linked, therefore, to the role which the undertaking which is the addressee of the decision has played in the business sector concerned by the cartel. It follows that the origin of liability with regard to competition is not the holding of shares but responsibility for management.
73. Finally, Eni considers that the contested decision is vitiated by a lack of reasoning. Thus, the Commission states that the information flows between subsidiary and parent company are of no account although, on the other hand, it carries out a detailed analysis of those flows and of the obligations of the persons which actually participated in the alleged anti-competitive conduct. Moreover, the result of that analysis is not conclusive, since it did not lead back to Eni (recital 376 to the contested decision). In the light of the Commission’s new position regarding the basis of liability for infringements of the competition rules, that superficial reasoning does not appear to be in accordance with Article 253 EC. Eni points out, in that regard, that ‘if it goes appreciably further than the previous decisions, the Commission must give an account of its reasoning’ (Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others
v Commission
[1975] ECR 1491).
74. The Commission contends that the second part of the first plea in law should be rejected. It considers, in essence, that the contested decision does not uphold the application of strict liability.
Findings of the Court
75. In the second part of the first plea in law, Eni works on the premiss that the Commission raised, in the contested decision, an irrebuttable presumption that the parent company was liable for the acts of its wholly-owned subsidiaries.
76. However, that premiss is incorrect.
77. In the contested decision, the Commission clearly stated that it could assume that a wholly-owned subsidiary essentially followed the instructions given to it by its parent company without needing to check whether the parent company had in fact exercised that power, and that it was for the parent company or subsidiary to reverse that presumption. The Commission stated, in that regard, that evidence could be produced to show that the subsidiary had decided independently on its own conduct on the market rather than carrying out its parent company’s instructions, with the result that they fell outside the definition of an ‘undertaking’ (recital 335 to the contested decision).
78. It follows that, contrary to what Eni maintains, the Commission did not raise an irrebuttable presumption in the contested decision. The fact that the Commission, in recitals 383 to 394, rejected the arguments presented by Eni to rebut the presumption stemming from the 100% control of its subsidiaries is not tantamount to rendering that presumption irrebuttable. The Commission only expressed its view that the arguments put forward by Eni did not rebut that presumption. That does not prevent Eni from challenging the Commission’s view in that regard, which it has indeed done in the third part of this plea.
79. It also follows that the lack of reasoning alleged by Eni in that regard is unfounded.
80. In the light of those considerations, the second part of the first plea in law raised by Eni must be rejected as unfounded.
c) Third part: error in the analysis of the evidence adduced by Eni
Arguments of the parties
81. While challenging the Commission’s argument regarding the presumption raised against it, Eni maintains that it submitted, at the time of the administrative procedure, a structured body of data and information to show that the companies in the group operating in the chemical sector acted independently.
82. First, as regards the analysis of the information flows between the companies in the group, the Commission concludes that ‘[t]he reporting lines between managers in the BR/ESBR business lead directly to the [chief executive officer (CEO)] of EniChem SpA and Polimeri’ (recital 376 to the contested decision). The information flows in no way lead back to Eni. In fact, the Commission manages to go back to the boards of directors of the operational companies only indirectly and by using an artificial description. Eni refers, in that regard, to recital 377 to the contested decision and states that the situation thus described reflects the normal internal organisation of any commercial company. However, there is no indication as to the level at which the various decisions are taken within the operational company in question. This situation is substantially different from those which characterise other cases, in which the persons which had actually taken part in the infringements on behalf of the subsidiary had specific obligations to account to the parent company. Eni refers, in that regard, to several of the Commission’s decisions. From that point of view, also, Eni’s situation is different from that of Dow, Shell and Unipetrol.
83. The Commission stated, without giving reasons in that regard, that it ‘[did] not have to prove the existence of an information flow to apply the presumption’ (recital 392 to the contested decision) and that ‘[Eni’s] alleged lack of awareness [of the anti-competitive conduct of its subsidiaries] is irrelevant’ (recital 383 to the contested decision). However, the finding of information flows between the companies in the group and, consequently, of the knowledge which the parent company has of the conduct of its subsidiary is a relevant factor, the function of which is to show that the company at the head of the group is actually involved in the management of the activities of its subsidiaries.
84. Moreover, the statement that ‘[t]he exercise of decisive influence on the commercial policy of a subsidiary does not require day-to-day management of the subsidiary’s operation (recital 384 to the contested decision) is incorrect, since the ‘decisive influence’ that a parent company exercises on the conduct of its subsidiary on the market entails active involvement by the former in the management of the latter. In the present case, there is nothing to show that the commercial policies and objectives of Syndial/Polimeri were defined by Eni. Eni adds that the Commission, in its pleadings before the Court, tries to minimise the importance of that fact, considering that it is at most an ‘additional factor’ on top of the presumption. However, that is tantamount to confirming the lack of imputability to Eni of liability for the infringement.
85. Second, Eni states that, during the administrative procedure, it maintained that it had never been directly active in the sector concerned by the infringements. It also pointed out that chemicals were not part of its main activity. During the 1990s, it was converted from a holding company into an operational company and carried out a complex process of allocating the activities to different divisions, from which activities connected with chemicals were excluded. Moreover, those activities were rationalised, that process being completed, during the year 2002, with the tra nsfer to Polimeri of the whole of the group’s chemical business. Polimeri’s net profits, in 2002, particularly as regards the sector concerned, in relation to those of Eni for the same year, show that the chemical business is of relative importance in the group’s industrial policy. The independence of the chemical sector is also confirmed by the group’s corporate governance rules, described by Eni during the administrative procedure. In particular, the decisions relating to the industrial strategies of the subsidiaries are discussed and adopted within the various ‘operational divisions’ and various ‘units’ of those undertakings, without any direct participation from the members of the board of directors or chairman of the operational company or, even less so, from other levels of the parent company. Moreover, Eni’s articles of association and corporate governance rules show that, in relation to its subsidiaries, it is merely a technical and financial coordinator, providing them with the necessary financial assistance. As regards hypothetical financial support granted by Eni to its subsidiaries, which the Commission mentions in its pleadings before the Court, they were not mentioned in the contested decision. Moreover, that fact is not relevant, since any shareholder may participate in financial operations concerning a company in which he holds shares.
86. Referring to recitals 387, 388, 390 and 391 to the contested decision, Eni considers that the Commission carried out a superficial, not to say manifestly incorrect, examination of the information provided during the administrative procedure. The contested decision systematically disregards any information which might weaken the Commission’s basic premiss, namely that a company which controls 100% of the capital of another company must, in every case, be declared liable for the conduct of that subsidiary.
87. Moreover, the statement that ‘the definition of core business and the qualification of the role of a parent group in terms of “holding company” are not conclusive arguments with respect to the effective autonomy of a subsidiary’ is contrary to the Commission’s usual practice, recently confirmed in the Raw tobacco – Italy case (see paragraph 50 above). Such disparity of treatment, which, moreover, is not reasoned in any way, also constitutes an infringement of the principle of non‑discrimination, a principle which the Commission is required to observe in the exercise of its discretionary power.
88. Eni also points out that, at least until 2001, it did not directly hold 100% of the capital of the undertakings active in the production and marketing of BR and ESBR and that it only acquired full ownership of Polimeri on 21 October 2002, that is at the time the administrative procedure ended. As for the argument that Eni ‘was systematically reorganising [the] business’ of the subsidiaries, it adds nothing to the Commission’s case.
89. Third, the Commission points out that ‘the absence of a management overlap cannot be taken ... as being a significant, let alone decisive, factor’ (recital 393 to the contested decision). By that statement, the Commission avoids expressing a view on the information presented by Eni during the administrative procedure, which shows that no person simultaneously played a management role within the companies in the BR and ESBR sectors and within the parent company.
90. Finally, the Commission considers, in its pleadings before the Court, that, in order to rebut the presumption regarding a parent company which wholly owns a subsidiary which has committed an infringement, it is necessary to indicate special and unusual circumstances. That view confirms that, whenever there is a controlling interest in accordance with general law, the parent company must be regarded, on that fact alone, as jointly and severally liable for any infringements by its subsidiary of the competition rules. The Commission’s argument is extremist and uncompromising and conflicts with its previous practice, thus resulting in unequal treatment.
91. In conclusion, Eni considers that the evidence it adduced to show the independence of its subsidiaries was either examined and rejected without having been assessed in context and as a whole, or rejected in such general terms that the reasons for the rejection are incomprehensible. That also constitutes a flagrant infringement of the principle of sound administration.
92. The Commission contends that the third part of the first plea in law should be rejected. It maintains, in essence, that the evidence put forward by Eni is not sufficient to rebut the presumption that applies in the present case.
Findings of the Court
93. For the reasons set out in the context of the first part of the first plea, the Commission was entitled to presume that, owing to the fact that Eni directly or indirectly held 100% of the capital of its subsidiaries, it exercised a decisive influence over their conduct.
94. Consequently, it was for Eni 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.
95. Specifically, it was for Eni 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 case (Case T‑112/05 Akzo Nobel and Others
v Commission
[2007] ECR II‑5049, paragraph 65).
96. First, by some of its arguments, Eni maintains, in essence, that, in view of the role assigned to it, inter alia, by its articles of association, it could not exercise a decisive influence on the commercial transactions of its subsidiaries. In particular, it points out that it is ‘merely a technical and financial coordinator’. It has never been ‘directly active in the sector concerned’. No person has simultaneously played a management role within the subsidiaries and within Eni. The awareness which the parent company has of the conduct of its subsidiary on the market is, moreover, relevant. In the present case, the information flows referred to by the Commission do not lead back to Eni.
97. However, it is not because of a parent-subsidiary relationship in which the parent company instigates the infringement or, a fortiori, because of the parent company’s involvement in the infringement but because they constitute a single undertaking in the sense described above that the Commission is able to address the decision imposing fines to the parent company of a group of companies. Thus, attribution to the parent company of the unlawful conduct of a subsidiary does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred ( Akzo Nobel and Others
v Commission, cited in paragraph 95 above, paragraphs 58 and 83). In particular, the fact that Eni is merely a technical and financial coordinator, and that it provides its subsidiaries with the necessary financial assistance, is not sufficient to rule out the possibility that it exercises decisive influence over the conduct of those subsidiaries by coordinating, inter alia, financial investments within the group. In the context of a group of companies, a company that coordinates, inter alia, financial investments within the group is in a position to regroup shareholdings in various companies and has the function of ensuring that they are run as one, including by means of such budgetary control (see, to that effect, judgment of 30 September 2009 in Case T-168/05 Arkema
v Commission, not published in the ECR, paragraph 76).
98. As regards the allegation that the chemical activities are of relative importance in the group’s industrial policy, that cannot prove that Eni allowed its subsidiaries complete independence in defining their conduct on the market (see, to that effect, Bolloré and Others v Commission, cited in paragraph 48 above, paragraph 144).
99. Second, for the sake of completeness, the Commission sets out in the contested decision additional evidence to suggest that Eni had exercised a decisive influence over the conduct of its subsidiaries. In particular, the Commission points out that the reporting lines lead directly to the CEO of EniChem SpA (now Syndial) and the CEO of Polimeri. Eni does not dispute that conclusion, but states only that that is the normal internal organisation of a commercial company. Moreover, the Commission states, in recital 379 to the contested decision, that the CEOs of EniChem SpA (now Syndial) and Polimeri are responsible to their boards of directors. Those boards of directors were directly or indirectly appointed by Eni, which it does not deny.
100. Third, as regards recitals 387, 388, 390 and 391 to the contested decision, it must be stated, contrary to what Eni maintains, that the Commission did not carry out a superficial examination of the evidence presented during the administrative procedure. The Commission gave specific replies to Eni’s arguments. Furthermore, Eni does not explain in what respect the Commission’s position in that regard is ‘manifestly incorrect’, as it maintains, however, in its application.
101. Fourth, as for the claim that the contested decision is contrary to the Commission’s decision-making practice, Eni’s arguments must be rejected for the same reasons as those developed in the first part of the first plea and set out in paragraphs 64 to 66 above.
102. Fifth, as for the fact that Eni did not directly – but indirectly – hold 100% of the capital of the undertakings active in the production of BR and ESBR, it must be held that that circumstance does not, in itself, show that Eni and the undertakings at issue did not form a single economic entity.
103. Sixth, with regard to the alleged infringement of the principle of sound administration, it must be pointed out that the rights guaranteed by the Community legal order in administrative procedures include, in particular, that principle, to which is linked the duty of the competent institution to examine carefully and impartially all the relevant aspects in the individual case (Case T‑44/90 La Cinq
v Commission
[1992] ECR II‑1, paragraph 86, and Case T‑31/99 ABB Asea Brown Boveri
v Commission
[2002] ECR II‑1881, paragraph 99). In the light inter alia of the evidence set out in paragraph 100 above, there is nothing to suggest that the Commission did not examine carefully and impartially the aspects in the present case.
104. It is apparent from all these points that the arguments put forward in this part of the first plea do not alter the fact that Eni and its subsidiaries could be regarded as a single economic entity.
105. In the light of those considerations, the third part of the first plea in law raised by Eni must be rejected as unfounded.
d) Fourth part: infringement of the principle of the limited liability of capital companies and of general principles governing liability
Arguments of the parties
106. According to Eni, the Commission’s action is incompatible with the principles generally accepted in Community company law and in national company law and with their criteria for attributing liability, which confirm, and even have as a fundamental principle, the wholly individual nature of that liability. The principle of limited liability inevitably defines the criteria for imputing liability. The circle of persons liable for an infringement or an unlawful act cannot be extended beyond the subsidiary which actually commits the act, so as to include, either secondarily or independently, its parent company, on the basis of an irrebuttable presumption linked to the group’s capital structure.
107. The Commission held, without giving a specific reason, that those principles were not relevant in the present case, in particular because they concerned other legal areas. Eni refers, in that regard, to recital 396 to the contested decision. The party interpreting a Community rule cannot arbitrarily disregard the scope and implications of a concept common to the legal orders of the Member States, on the pretext that that principle belongs to a legal area other than that to which it is to be applied.
108. As regards the principle of the limited liability of companies under general law, this means that partners meet the obligations of the company only within the limits of their contribution and that, consequently, the company alone meets, out of its assets, the company’s obligations. In other words, partners – whether they are natural persons or, as in the case of groups of companies, legal persons – assume no liability towards third parties. That principle has been incorporated into Community law. Eni refers, in that regard, to several directives relating to company law.
109. In that context, under the principle of limited liability, mere control by the holding company, situated at the head of the group, does not necessarily, still less automatically, result in the disappearance of the autonomy of the various undertakings which have a different legal personality. Abandonment of the principle of limited liability is allowed only in the case of misuse of the corporate form, that is to say, where there is a body of consistent indicia showing the existence of a single centre of interests, including in the legal sense. Those principles are recognised in the United States, in France and in the United Kingdom, countries for which Eni gives an analysis of the applicable company law rules. With regard to the United States, Eni refers to two opinions prepared by experts. According to Eni, those opinions corroborate the arguments set out analytically in the first plea of the application. Those opinions do not constitute the development of a new plea or of a plea which is set out only cursorily.
110. In addition to those principles, which it maintains are recognised in the law of the Member States, Eni also refers to the rules applicable, in competition law, to business successions. In that regard, it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking. Eni refers, in particular, to Case C-279/98 P Cascades
v Commission [2000] ECR I‑9693, Case C-297/98 P SCA Holding
v Commission
[2000] ECR I‑10101 and Case T-6/89 Enichem Anic
v Commission
[1991] ECR II‑1623. That economic continuity test can only apply where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed ( Commission v Anic Partecipazioni, cited in paragraph 72 above). Even in that case, it is not an automatic device based solely on the structural link which results in the penalisation of a person other than the original operator, but rather specific and reasoned needs, and particularly the need to prevent legal constructions making it possible to circumvent the rules on competition. In other words, the economic continuity test is applied only exceptionally. Indeed, ‘fixing the objective in the activity and not in the person carrying it out, irrespective of the fact that the latter person exists and can answer for its acts, is tantamount to ignoring the principle of culpability and the principle that punishment should only be applied to the offender’ (Opinion of Advocate General Ruiz-Jarabo Colomer in Aalborg Portland and Others
v Commission, cited in paragraph 72 above). Eni also refers to the Opinion of Advocate General Kokott in ETI and Others, cited in paragraph 52 above.
111. In conclusion, Eni considers that to establish or explain the infringement of Article 81 EC, which it is alleged to have committed in this case, solely on the fact that it holds a controlling interest, under an irrebuttable and unquestionable presumption, is tantamount, unjustifiably, to creating a source of objective liability, that is to say, a strict liability, which is indirect in that it refers to acts the perpetrator of which is another person. Such a situation results in an infringement of the rights of the defence, either because the burden of proof is reversed or because the opportunity to adduce exculpating evidence is limited. Moreover, the contested decision is vitiated in that regard by a lack of reasoning, since the Commission does not state the specific reasons which led it to take that approach.
112. The Commission contends that the fourth part of the first plea in law should be rejected. It points out, in particular, that Eni’s arguments have already been refuted in recital 396 to the contested decision.
Findings of the Court
113. The fourth part of the first plea in law raised by Eni is based on the premiss that it was held liable by the Commission solely on the fact that it had a controlling interest, under an irrebuttable and unquestionable presumption. That amounts, according to Eni, to creating a source of objective, that is to say, strict, and indirect liability.
114. For the reasons set out in connection with the second part of this plea, it is apparent from the contested decision that the Commission did not raise an irrebuttable presumption in this case. Eni could therefore challenge the imputation to it of liability for the infringement, which it did, moreover, during the administrative procedure and in the third part of this plea.
115. It follows that the fourth part of the first plea in law raised by Eni is based on a false premiss.
116. Moreover, for the reasons set out in paragraphs 60 to 62 above, the Commission can impute to the parent company liability for an infringement committed by a subsidiary, provided that that subsidiary does not independently determine its own conduct on the market. In the present case, it is apparent from the arguments developed in the first three parts of this plea that the Commission did not commit an error in that regard.
117. Finally, as regards the arguments put forward by Eni concerning the rules applicable, in competition law, to business successions, it must be stated that they are irrelevant, since the Commission’s finding, in the present case, that Eni is liable is not the result of such a situation. Even if, by its arguments, Eni is contesting the liability attributed to it for the infringement committed by EniChem SpA (now Syndial), even though Syndial is not covered by the contested decision, they must be rejected. It should be pointed out that, contrary to what Eni maintains in essence, where two entities constitute a single economic entity, the fact that the entity which committed the infringement still exists does not, in itself, preclude the application of penalties to the entity to which it transferred its economic activities (see, to that effect, Aalborg Portland and Others v Commission, cited in paragraph 72 above, paragraphs 355 to 358, and Jungbunzlauer
v Commission, cited in paragraph 46 above, paragraph 132). I n particular, applying penalties in this way is permissible where those entities have been subject to control by the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions ( ETI and Others, cited in paragraph 52 above, paragraph 49). In the present case, it is not disputed that, at the time of their offending conduct, EniChem SpA and Polimeri were wholly owned, directly or indirectly, by the same company, namely Eni. In those circumstances, the principle of personal liability does not preclude the penalty for the infringement committed, first by EniChem SpA and subsequently by Polimeri, being imposed wholly on the latter, as held in recitals 369 to 373 to the contested decision (see, to that effect, ETI and Others, cited in paragraph 52 above, paragraph 51). Therefore, in the light of the fact that Eni was the parent company of EniChem SpA and Polimeri, there was no reason why the offending conduct of those companies, including that resulting from the transfer of the activities of EniChem SpA (now Syndial), should not be imputed to Eni, even though Syndial is not covered by the contested decision.
118. In the light of those considerations, the fourth part of the first plea in law raised by Eni must be rejected as unfounded, as, therefore, must the first plea in its entirety.
2. Second plea in law: in the alternative, unlawful setting of the amount of the fine
119. In the alternative, Eni maintains that the fine imposed on it jointly and severally with Polimeri should be annulled or, at least, significantly reduced, since its amount was set unlawfully.
120. Eni’s second plea consists of three parts. In the first part, it contests the application of a multiplier for deterrence. In the second part, it considers that the Commission committed an error by finding the aggravating circumstance of repeated infringement in this case. In the third part, it claims that the Commission should have taken into account the exclusion of Syndial when calculating the fine.
a) First part: misapplication of a multiplier for deterrence
Arguments of the parties
121. First, Eni points out that, in fixing the basic amount of the fine according to the gravity of the infringement, the Commission took into account only the nature of the infringement, totally disregarding its actual impact on the market. Eni refers, in that regard, to recital 462 to the contested decision.
122. However, the parties to the administrative proceedings provided evidence which made it possible to assess the impact of the infringement. In particular, Syndial demonstrated that the undertakings participating in the alleged cartel held only a small part of the whole market for BR (30%) and ESBR (40%).
123. In those circumstances, it is difficult to maintain that a possible agreement between the undertakings concerned could have had a significant impact on prices. The Commission disregarded that information in the second statement of objections. Even if it were conceded that the Guidelines authorise the Commission not to measure the impact of the infringement, the fact remains that it should have taken it into account in order to assess the gravity of the infringement, as is confirmed, moreover, by the Commission’s decision-making practice and the case-law ( Degussa v Commission, cited in paragraph 72 above).
124. Second, in order to take into account the capacity of the perpetrators of the infringement actively to affect the proper working of competition and to ensure that the fine had a ‘sufficient deterrent effect’, the Commission took as its basis the BR and ESBR sales of the undertakings concerned (recital 467 to the contested decision) and also the global turnover of the groups to which those undertakings belong (recital 474 to the contested decision).
125. The result for Eni is clearly contrary to the principle of proportionality. The contested decision takes no account of the subjective element, that is to say, the awareness of the anti-competitive nature of the conduct at issue, or the scale and size of the market concerned, the global value of which in the EEA was, in 2001, EUR 550 million (recital 467 to the contested decision).
126. Moreover, the size of the global turnover of the Eni group is overestimated, which is prohibited by the case-law of the General Court. Eni refers, in that regard, to Case T-220/00 Cheil Jedang
v Commission
[2003] ECR II‑2473. While acknowledging the criterion of the group’s turnover to determine the deterrent effect, the Court stated that, in order to avoid wholly mechanistic and disproportionate results, it was mandatory that the ‘specific weight’ of the undertaking on the market concerned by the infringement be taken into account. As has already been demonstrated in connection with the first plea, and confirmed by the contested decision, the activities in the chemical sector have never been part of Eni’s main business. Thus, by merely taking into consideration the group’s global turnover and by applying, consequently, a multiplier of two to the amount of the fine for deterrence, the Commission imposed an excessive and disproportionate fine on Eni.
127. The Commission contends that the first part of the second plea in law should be rejected. It considers, in essence, that it did not err in determining the gravity of the infringement.
Findings of the Court
128. First of all, it should be pointed out that, in spite of the heading of the first part of the second plea in law, Eni is in fact contesting the determination of the gravity of the infringement, as it confirmed at the hearing.
129. 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 (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 465, and Dansk Rørindustri and Others v Commission, cited in paragraph 43 above, paragraph 241).
130. 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).
131. 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 that 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 1.A).
132. Moreover, 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 1.A).
133. 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 (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission
[1983] ECR 1825, paragraphs 105 and 106; ABB Asea Brown Boveri
v Commission, cited in paragraph 103 above, paragraph 166; and Case T-38/02 Groupe Danone v Commission
[2005] ECR II-4407, paragraph 169).
134. That 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
[2004] ECR II‑1181, paragraphs 241 and 243; see also ABB Asea Brown Boveri
v Commission, cited in paragraph 103 above, paragraph 170, and Case T‑15/02 BASF
v Commission
[2006] ECR II‑497, paragraph 235).
135. 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, Case C-291/98 P Sarrió
v Commission
[2000] ECR I‑9991, paragraphs 85 and 86, and 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).
136. Finally, 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 135 above, paragraphs 23 and 24).
137. In the present case, the Commission found, first of all, in the contested decision that the undertakings concerned had concluded agreements on price targets and market sharing, and had 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 stated that it was 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 concluded by stating that it would 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 noted that the infringement covered the whole of the EEA (recital 463 to the contested decision). For those reasons, the Commission took the view that the infringement at issue could be described as very serious (recital 464 to the contested decision).
138. After that, 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, EniChem being placed in the first category (starting amount of the fine: EUR 55 million) (recitals 465 to 473 to the contested decision).
139. The Commission stated, moreover, 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).
140. First, it must be observed that, in its action, Eni does not call into 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 Joined Cases T-49/02 to T-51/02 Brasserie nationale and Others v Commission
[2005] ECR II-3033, paragraph 178, and Case T-410/03 Hoechst v Commission
[2008] ECR II-881, paragraph 345). Similarly, it is settled case-law that horizontal price agreements are particularly injurious 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 133 above, paragraph 147).
141. The Commission did not therefore err in finding that the practices at issue were, by their nature, very serious infringements.
142. Second, as regards the judgment in Degussa
v Commission, cited in paragraph 72 above, to which Eni refers, it need only be said that, in that case, the Commission had measured the specific impact of the cartel, which it did not do in the present case. Eni cannot therefore rely on the judgment in Degussa
v Commission, cited in paragraph 72 above, in order to challenge the legality of the contested decision in that regard.
143. Third, as regards the reference made by Eni, in its pleadings, to the size of the market in question, in the EEA, for the year 2001 (namely EUR 550 million), or to the market share of the undertakings concerned, it must be held that, although those elements may be taken into consideration in order to establish the gravity of the infringement, it is necessary to take into account other relevant aspects of the case in question (see, to that effect, Dalmine
v Commission, cited in paragraph 130 above, paragraph 132, and Case T-329/01 Archer Daniels Midland
v Commission
[2006] ECR II‑3255, paragraph 102). In the present case, it must be taken into account that the infringement at issue is intrinsically very serious and that it covers the whole of the EEA. In particular, it must be pointed out that the undertakings concerned agreed to set price targets, share customers by non‑aggression agreements and exchange sensitive information on prices, competitors and customers. Moreover, it should be pointed out that, under Section 1.A of the Guidelines, the amount of the fine which may be set for a very serious infringement is over EUR 20 million. It should also be pointed out that EniChem’s sales for the products at issue, in 2001, were more than EUR 164 million (recital 468 to the contested decision). Finally, Eni does not dispute that the amount of the fine imposed on it 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, Musique Diffusion française and Others
v Commission, cited in paragraph 133 above, paragraph 119). Taking those circumstances into account, setting the starting amount of the fine at EUR 55 million, before applying a multiplier for deterrence, does not seem disproportionate.
144. Fourth, as regards the alleged fact that the undertakings concerned held only a small part of the whole BR and ESBR market, Eni stated, at the hearing, that its evaluation was based on a market including those two products as well as natural rubber, which was not referred to by the contested decision. In those circumstances, Eni’s arguments in that regard are irrelevant.
145. Fifth, as regards the lack of ‘awareness of the anti-competitive nature’, it is apparent from the contested decision and from the gravity of the infringement that EniChem SpA must have been aware of the anti‑competitive nature of its conduct. Moreover, for the reasons set out in connection with the first plea, the Commission rightly imputed liability for the infringement in question to Eni. Therefore, the arguments put forward by Eni must be rejected.
146. Sixth, as regards the application of a multiplier for deterrence, it should be pointed out that the link between, on the one hand, the size and total resources of the undertakings and, on the other, the need to ensure that the fine has a deterrent effect cannot be contested. It should be pointed out that 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 ( BASF
v Commission, cited in paragraph 134 above, paragraph 235).
147. That question is different from that of the classification of undertakings in the category of very serious infringements, a classification which may make it necessary to take into account the specific weight of undertakings on the market in question (see, to that effect, Cheil Jedang
v Commission, cited in paragraph 126 above, paragraphs 88 and 89). Therefore, there is no reason to infer that the Commission erred in deciding to take into account the size and total resources of the undertakings when applying a multiplier for deterrence.
148. It should also be pointed out that, in the present case, the Commission also took into account the specific weight of the undertakings concerned on the market in question when it used the amount of BR and ESBR sales of the undertakings during the last year of the infringement for the purpose of weighting the amount of the fine in the category of very serious infringements.
149. In the light of those considerations, the first part of the second plea in law raised by Eni must be rejected as unfounded.
b) Second part: unjustified increase in the basic amount of the fine for repeated infringement
Arguments of the parties
– Arguments of Eni
150. Referring to recitals 487 and 488 to the contested decision, Eni concedes that the collusive conduct penalised by Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article [81 EC] (IV/31.149 – Polypropylene) (OJ 1986 L 230, p. 1; ‘the Polypropylene decision’) and Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article [81 EC] (IV/31.865 – PVC) (OJ 1994 L 239, p. 14; ‘the PVC II decision’), to which the Commission refers as a basis for its analysis concerning repeated infringement, could be regarded as similar to that which is alleged in the contested decision.
151. However, the subjective condition of repeated infringement – that is to say, the fact that the infringements at issue were committed by the same undertaking – is not satisfied.
152. In that regard, first, Eni points out that the activities in question concerned different products and markets from those which are the subject of the contested decision and had already been transferred for some time before the adoption of the Polypropylene and PVC II decisions.
153. Second, the legal persons penalised by the Polypropylene and PVC II decisions were persons other than Eni. The group undertaking concerned by those decisions was EniChem SpA, now Syndial, or Anic SpA. However, those undertakings were not addressees of the contested decision. Eni was not involved in either of the decisions referred to by the Commission, either as an active participant in the penalised cartels or because it controlled the two companies in the group.
154. Third, the Commission’s conclusion is incompatible with the principle of limited liability and of its personal nature, since it imputes an aggravating circumstance to the parent company, even though that company was not found liable in the previous decisions. That infringement is particularly serious because it arises in the exercise of penalising powers defined by the principle of legality, observance of which must guarantee to undertakings that the penalties which the Commission may impose on them under Article 81 EC are wholly foreseeable. Furthermore, the vague and undefined expressions ‘similar infringements’ and ‘the same undertaking’ used by the Commission show that the contested decision is unreasoned in that regard.
155. Fourth, Eni contests the Commission’s power to find the aggravating circumstance of repeated infringement, irrespective of the time which elapsed between infringements. It refers, in that regard, to Case C‑3/06 P Groupe Danone
v Commission
[2007] ECR I‑1331 and to the Opinion of Advocate General Poiares Maduro in that case (ECR I‑1337). It adds that, unlike in that judgment, in which the Court of Justice pointed out that the Commission had duly taken the relevant information into consideration, there is no such analysis in the present case, and sufficient reasons are not given for its absence.
– Arguments of the Commission
156. At the outset, the Commission points out that the question of repeated infringement had been raised in the second statement of objections, without Eni making any objection either in its reply or at the hearing.
157. On the substance, first, the Commission states that, since Community competition law recognises that different companies belonging to the same group constitute an economic entity, it could, if it had wished, have imposed the fine on the same parent company in the previous decisions. Therefore, the Commission considers that it was entitled to hold, in the contested decision, that the same undertaking had already been penalised for the same kind of infringement (Case T-203/01 Michelin
v Commission [2003] ECR II‑4071). It points out that, in that judgment, the Court approved the application of an increase in the fine for repeated infringement to another company in the group, more specifically to a ‘sister’ company to the one which had been penalised previously. Moreover, the concept of repeated infringement, in the light of the objective which it pursues, does not necessarily mean a finding of a previous financial penalty, but only that of a previous infringement ( Groupe Danone
v Commission, cited in paragraph 133 above). Therefore, it is immaterial that the Commission did not impose any fine on Eni as such in the cases which gave rise to the PVC II and Polypropylene decisions. The fact that the companies which were the addressees of the previous decisions were wholly controlled by Eni is, on the other hand, conclusive. Moreover, group companies which are parts of the same undertaking cannot be allowed to evade repeated infringement by reason only of the organisational structure of the group itself.
158. Second, it is irrelevant that the previous infringements concerned different sectors and these have since been transferred to other legal persons. The increase in the fine for repeated infringement is based on the fact that the previous finding of an infringement was not sufficient to prevent further unlawful conduct on the part of the undertaking. Moreover, the case-law has also stated that it fell, in principle, to the legal or natural person managing the undertaking in question when the infringement had been committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking ( Cascades
v Commission, cited in paragraph 110 above). Those criteria should apply to repeated infringement.
159. Third, the Court of Justice, in Groupe Danone
v Commission, cited in paragraph 155 above, reaffirmed that any repeated infringement was among the factors to be taken into consideration in the analysis of the gravity of the infringement, in accordance with Article 15(2) of Regulation No 17, and that, in that respect, the applicant had still been able to foresee the legal consequences of its conduct. The same applies to Article 23(3) of Regulation No 1/2003, which constitutes the legal basis of the contested decision. The application of an increase for repeated infringement therefore does not infringe the principle of legality.
160. Fourth, it is now established that the finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and the Commission cannot be bound by any limitation period when making such a finding ( Groupe Danone
v Commission, cited in paragraph 155 above). In any event, the infringements relating to polypropylene and PVC were found by decisions adopted in 1986 and 1994 respectively. It is perfectly logical, natural and appropriate to take such precedents into account for a fresh infringement committed after 1996. The period which elapsed between the two infringements is, in itself, irrelevant (Case T-141/94 Thyssen Stahl
v Commission
[1999] ECR II‑347). As for the interval of time between the previous decisions and the beginning of the fresh infringement, it is the same as, or even less than, those already taken into consideration by the General Court and the Court of Justice in Michelin
v Commission, cited in paragraph 157 above, and Groupe Danone
v Commission, cited in paragraph 155 above. The Commission adds that, according to the latter judgment, it ‘may’ take into consideration the time which has elapsed since the previous infringement as being one of the indicia tending to confirm a propensity for contravening the competition rules. In the present case, the Commission specifically examined that question in recital 489 to the contested decision and concluded that it was appropriate to take repeated infringement into account.
Findings of the Court
161. Section 2 of the Guidelines refers, as an example of aggravating circumstances, to ‘repeated infringement of the same type by the same undertaking(s)’.
162. Repeated infringement, as understood in a number of national legal systems, implies that a person has committed fresh infringements after having been penalised for similar infringements ( Thyssen Stahl
v Commission, cited in paragraph 160 above, paragraph 617, and Michelin v Commission, cited in paragraph 157 above, paragraph 284).
163. Any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question ( Aalborg Portland and Others v Commission, cited in paragraph 72 above, paragraph 91, and Groupe Danone
v Commission, cited in paragraph 155 above, paragraph 26).
164. In the present case, the Commission notes in the contested decision that EniChem had already been the addressee of Commission decisions concerning cartel activities (namely the Polypropylene and PVC II decisions). This proves that the first fines were not sufficient for that undertaking to change its conduct. The Commission concludes that that repeated infringement constitutes an aggravating circumstance that justifies an increase of 50% in the basic amount of the fine (recital 487 to the contested decision).
165. Eni lays particular emphasis on the fact that it was not covered by the previous decisions mentioned by the Commission in the contested decision.
166. It is evident from the contested decision that the Commission took account, in this case, of the concept of ‘undertaking’ within the meaning of Article 81 EC for the purpose of applying the aggravating circumstance of repeated infringement, a fact which the Commission confirms in its pleadings. More specifically, the Commission considered, in essence, that the same undertaking had repeated an offending line of conduct, even if the legal persons involved in the infringements in question were not the same. It should be recalled, in that regard, that the concept of an undertaking within the meaning of Article 81 EC must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see the case-law cited in paragraph 60 above). In that context, it must be held that, when the Commission seeks to invoke the concept of ‘undertaking’ within the meaning of Article 81 EC, it must adduce detailed and specific evidence to support its assertion.
167. It must be pointed out, first, that the Commission refers, in a general way, in recital 487 to the contested decision, to ‘EniChem’, that term being defined in recital 36 to the contested decision as ‘any company owned by Eni SpA’. It must therefore be observed that the term used by the Commission in the contested decision, in the context of the assessment of the repeated infringement, is relatively imprecise, at least as regards the legal persons forming the economic entity covered by the Polypropylene and PVC II decisions. Furthermore, even if the legal persons in question are those mentioned in recitals 26 to 35 to the contested decision, it must be pointed out that the company which was the subject of the Polypropylene decision, namely Anic, is not one of the legal persons mentioned in those recitals. Moreover, recitals 26 to 35 to the contested decision are essentially intended to describe the development of the companies owned by Eni during the infringement, which post‑dates the adoption of the Polypropylene and PVC II decisions. Those recitals are therefore not such as to provide sufficiently detailed and specific information on the companies owned by Eni before the infringement for which penalties are imposed by the contested decision.
168. Second, the Commission refers, in footnote 262 to the contested decision, to the Polypropylene and PVC II decisions, stating that ‘Eni’ was involved in those decisions. It must be pointed out, first of all, that the term ‘Eni’ is not defined in the contested decision, unlike the term ‘EniChem’, which is. In particular, it is apparent from recitals 26 to 36 to the contested decision that, whenever the Commission refers to Eni as the parent company of the other companies, it uses the term ‘Eni SpA’.
169. Third, even if, by the use of the term ‘Eni’ in footnote 262 to the contested decision, the Commission is referring to the companies which form part of the ‘undertaking’ within the meaning of Article 81 EC, consisting of the legal persons controlled by Eni, it must be pointed out that the Commission did not adduce any detailed and specific evidence in that regard in the contested decision. The Commission merely notes, in its pleadings before the Court, that Eni ‘wholly’ controlled the companies addressed by the Polypropylene and PVC II decisions. However, apart from the fact that that assertion is not corroborated by any evidence, it was not included in the contested decision.
170. Fourth, it must be pointed out that, in this case, the development of the structure and control of the companies concerned is particularly complex. More specifically, the Polypropylene decision was addressed to Anic, and Eni’s name did not appear in that decision. As for the PVC II decision, the Commission refers in recital 8 to that decision to the fact that Anic is ‘now’ EniChem SpA and, in recital 43, to the fact that that change is due to ‘various reorganisations’, without providing further details. Moreover, here again, Eni’s name does not appear in that decision. It must be added that, in the present case, Eni’s activity in respect of the products concerned was originally carried out by EniChem Elastomeri (before the latter company was merged into EniChem SpA in 1997, that is to say, after the adoption of the PVC II decision) and that the activities of EniChem SpA were then transferred to Polimeri, which adds to the complexity of the structural development of the undertakings concerned. In that context, it was for the Commission to be particularly precise and to adduce all the detailed evidence necessary for it to be considered that the companies addressed by the contested decision and those addressed by the Polypropylene and PVC II decisions formed the same ‘undertaking’ within the meaning of Article 81 EC.
171. In the light of all those considerations, the Court considers that the Commission did not provide sufficient detailed and precise evidence in the contested decision to support a finding that the same ‘undertaking’ within the meaning of Article 81 EC had repeated an offending line of conduct. In those circumstances, the second part of the second plea in law must be upheld and, consequently, Article 2(c) of the contested decision must be annulled, in so far as it sets the fine imposed on Eni at EUR 272.25 million.
c) Third part: error in the calculation of the fine, linked to the exclusion of Syndial
Arguments of the parties
172. Eni points out that, after having originally included Syndial among those liable for the infringement, and sending it both the first and second statements of objections, the Commission nevertheless decided to exclude it from the addressees of the contested decision. The reason given by the Commission for that determination was that there was ‘a serious risk that, by the time a decision imposing a fine in this case [was] addressed to and executed against it, Syndial [would] no longer possess sufficient assets for payment of the fine’ (recital 372 to the contested decision).
173. However, the Commission’s criterion for excluding Syndial was not in accordance with the principles concerning business successions and transfers.
174. Referring to the arguments developed in connection with the first plea, Eni states that if, after the company has been altered, the undertaking held liable continues to exist, it remains liable for any infringement found against it. The only exception to that principle is where the legal person disappears. However that is by no means the position in this case, since – as the contested decision also points out – Syndial continues to exist and is not in liquidation. Eni adds that, by imputing to Polimeri liability for the alleged anti-competitive acts committed by other companies in the group before Polimeri took over the chemical sector, the Commission disregarded the fact that, until the end of 2001, that company was a joint undertaking under the joint control of Eni and Union Carbide.
175. The unjustified exclusion of Syndial affected the level of the fine. Eni points out, in that regard, that Syndial’s total turnover, for the year preceding the adoption of the contested decision, was EUR 860 million and that, in the case of joint and several liability, the total amount of the fine cannot exceed 10% of the turnover of the ‘smallest undertaking’. It refers, on that last point, to a work of legal literature. Although Syndial is taken into consideration for the application of the aggravating circumstance of repeated infringement, it is improperly ruled out for the purposes of limiting the amount of the fine to the 10% threshold laid down by the legislation. The consequence is that the total amount of the fine imposed on Eni infringes Article 23(2) of Regulation No 1/2003 and appears to be the result of a manifest abuse of powers.
176. The Commission contends that the third part of the second plea in law should be rejected. It maintains, in particular, that the exclusion of Syndial has no bearing on the amount of the fine imp osed on Eni.
Findings of the Court
177. The fact that several companies are held jointly and severally liable for a fine on the ground that they form a single undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (Case T‑9/99 HFB and Others
v Commission
[2002] ECR II‑1487, paragraphs 528 and 529, and Akzo Nobel and Others
v Commission, cited in paragraph 95 above, paragraph 90).
178. Therefore, even if Syndial had been an addressee of the contested decision, the amount of the fine for which Eni would have been held jointly and severally liable would not have had to be limited to 10% of Syndial’s turnover. It follows that Eni’s arguments are irrelevant.
179. Moreover, even if, by its arguments, Eni contests the liability found against it for the infringement committed by EniChem SpA (now Syndial), even though Syndial is not covered by the contested decision, they must be rejected for the same reasons as those set out in paragraph 117 above. The fact that, until the end of 2001, Polimeri was a joint undertaking placed under the joint control of Eni and Union Carbide cannot alter that conclusion, since it is not disputed that the transfer of activities between EniChem SpA (now Syndial) and Polimeri took place on 1 January 2002.
180. In the light of those considerations, the third part of the second plea in law raised by Eni must be rejected as unfounded.
181. It follows, for all those reasons, that the second part of the second plea in law must be upheld and, in consequence, Article 2(c) of the contested decision must be annulled in so far as it sets the amount of the fine imposed on Eni at EUR 272.25 million and that the remainder of the claim for partial annulment of the contested decision must be dismissed.
B – Claim for alteration of the amount of the fine
182. First of all, the Court must, for the reasons set out in paragraphs 166 to 171 above and in the exercise of its unlimited jurisdiction, pursuant to Article 31 of Regulation No 1/2003, amend Article 2(c) of the contested decision, in so far as the Commission, in order to reach the amount of EUR 272.25 million, wrongly applied to Eni the aggravating circumstance of repeated infringement.
183. In the circumstances of this case, in order to set the amount of the fine appropriately, the calculation method applied by the Commission should otherwise be left unchanged.
184. The final amount of the fine imposed on Eni is therefore set at EUR 181.5 million.
Costs
185. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of those rules, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared. In the circumstances of this case, each party is to bear its own costs.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls Article 2(c) 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) in so far as it sets the amount of the fine imposed on ENI SpA at EUR 272.25 million;
2. Sets the amount of the fine imposed on ENI at EUR 181.5 million;
3. Dismisses the action as to the remainder;
4. Orders the parties to bear their own costs.