62006TJ0189_EN
Parties
Grounds
Operative part
Parties
In Case T‑189/06,
Arkema France SA,
established in Colombes (France), represented initially by A. Winckler, S. Sorinas Jimeno and P. Geffriaud, and subsequently by S. Sorinas Jimeno and E. Jégou, lawyers,
applicant,
v
European Commission, represented initially by F. Arbault and O. Beynet, and subsequently by V. Bottka, P.J. Van Nuffel and B. Gencarelli, acting as Agents,
defendant,
ACTION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate) in so far as it relates to the applicant and, in the alternative, for annulment or reduction of the fine imposed on the applicant,
THE GENERAL COURT (Sixth Chamber, Extended Composition),
composed of V. Vadapalas (Rapporteur), acting for the President, M. Prek, A. Dittrich, L. Truchot and K. O’Higgins, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 3 September 2010,
gives the following
Judgment
Grounds
Background
1. The applicant, Arkema France SA (formerly Atofina SA), is a company incorporated under French law which at the material time manufactured, inter alia, hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’).
2. During the period between the beginning of the infringement and April 2000, its main shareholder, holding 97.5% of its shares, was Elf Aquitaine SA. From April 2000 onwards, the applicant was held, as to 96.48% of its shares, by Elf Aquitaine, in which Total SA had a 99.43% shareholding.
3. In November 2002, Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).
4. Degussa provided the Commission with material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of three undertakings, including those of the applicant.
5. Following those investigations, several undertakings, including EKA Chemicals AB, the applicant and Solvay SA, requested the application of the Leniency Notice and sent the Commission evidence relating to the cartel in question.
6.
On 26 January 2005, the Commission sent a statement of objections to the applicant and to the other undertakings concerned.
7. After the hearing of the undertakings concerned, which took place on 28 and 29 June 2005, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals, Degussa, Edison SpA, FMC Corp., FMC Foret SA, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, Solvay SA, Solvay Solexis SpA, Total, Elf Aquitaine and the applicant (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union
of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.
The contested decision
8. The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product PBS (recital 2 of the contested decision).
9. The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices.
10. The applicant, Total and Elf Aquitaine were held ‘jointly and severally’ liable for the infringement (recital 441 of the contested decision).
11. To calculate the amounts of the fines, the Commission applied the methodology 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) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).
12. The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital 452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).
13. As part of a differentiating approach, the applicant, Total and Elf Aquitaine were placed in the third category, in respect of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision).
14. In order to ensure a sufficient deterrent effect, a multiplier of 3 was applied to that starting amount, in view of the high turnover of the ultimate parent companies of the group, Elf Aquitaine and Total (recital 463 of the contested decision).
15. Since, according to the Commission, the applicant participated in the infringement from 12 May 1995 until 31 December 2000, namely a period of five years and seven months, the amount of its fine was increased by 55% on account of the duration of the infringement (recital 467 of the contested decision). That increase was not applied to the amount of the fine imputed to Total, which was found to be liable for the infringement in question during the period 30 April to 31 December 2000 (recital 468 of the contested decision).
16. The Commission made a finding of one aggravating circumstance against the applicant, in view of the fact of its repetition of the infringements found in Decision 85/74/EEC of 23 November 1984 relating to a proceeding under Article 85 of the EEC Treaty (Case IV/30.907 – Peroxygen products) (OJ 1985 L 35, p. 1) and Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (Case IV/31.865 – PVC) (OJ 1994 L 239, p. 14). Consequently, it increased the basic amount of the fine imputed to the applicant by 50% of the basic amount that would have been applied to it had the ultimate parent companies of the group not been addressees of the contested decision (recitals 469 to 471 of and footnote 90 to the contested decision).
17. The Commission found that the applicant was the second undertaking to have satisfied the requirements of point 21 of the Leniency Notice and on that basis granted it a reduction in the fine of 30%, which it applied to the total amount of the fine imposed on the applicant, Total and Elf Aquitaine (recitals 509 to 514 and 529 of the contested decision).
18. Article 1(o) to (q) of the contested decision state that the three companies infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement in question, from 30 April to 31 December 2000 in the case of Total and from 12 May 1995 to 31 December 2000 in the case of the applicant and Elf Aquitaine.
19. Under Article 2(i) of the contested decision, a fine of EUR 78.663 million was imposed on the applicant, in respect of which Total and Elf Aquitaine were held ‘jointly and severally’ liable for EUR 42 million and EUR 65.1 million respectively.
Procedure and forms of order sought
20. By application lodged at the Registry of the Court on 18 July 2006, the applicant brought the present action.
21. The composition of the Chambers of the Court having been altered, the Judge‑Rapporteur was assigned to the Sixth Chamber, and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).
22. As two members of the Chamber (Extended Composition) were unable to sit, the President of the Court designated two other judges to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure of the Court.
23. Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 3 September 2010.
24. The applicant claims that the Court should:
– annul the contested decision in so far as it concerns the applicant;
– in the alternative, annul or reduce the amount of the fine imposed upon it;
– order the Commission to pay the costs.
25. The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
26. In support of its action, the applicant puts forward, in substance, six pleas in law, alleging, first, breach of the rules on holding a parent company liable for infringements committed by a subsidiary and the principle of equal treatment, second, errors of fact in relation to the imputation of the infringement to Total and Elf Aquitaine, third, breach of the duty to state reasons and the principle of sound administration, fourth, errors of law and fact in relation to the increase in the amount of the fine in respect of deterrent effect, fifth, errors of law and fact in relation to the increase in the amount of the fine on account of repeated infringement, and, sixth, errors of law and fact in relation to the reduction in the amount of the fine in application of the Leniency Notice.
The first plea in law, alleging breach of the rules on holding a parent company liable for infringements committed by a subsidiary and the principle of equal treatment
Preliminary observations
27. It must be borne in mind that the competition law of the European Union covers 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 (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 54 and the case-law cited).
28. The Court of Justice has also stated that the concept of an undertaking, in that same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 55 and the case-law cited).
29. 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 (see Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 56 and the case-law cited).
30. The infringement of the competition law of the European Union 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 Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 57 and the case-law cited).
31. It is clear from settled case-law that the conduct of a subsidiary may be imputed to its parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon 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 (see Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 58 and the case‑law cited).
32. 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 abovementioned purposes. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement. (see Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 59).
33. The Court of Justice has also held that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 60 and the case-law cited).
34. The Court of Justice thus went on to state that, in those circumstances, it was 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 then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Akzo Nobel and Others v Commission, paragraph 27 above, paragraph 61 and the case-law cited).
35. In the present case, in recitals 370 to 379 of the contested decision, the Commission summarised, with reference to the case-law of the Court of Justice and the General Court, the principles it intended to apply in identifying the addressees of the contested decision.
36. The Commission pointed out that a parent company could be held liable for the unlawful conduct of a subsidiary in so far as the subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company. The Commission stated that it can generally assume that a wholly‑owned subsidiary essentially follows the instructions given by its parent company and that the latter can rebut the presumption by adducing evidence to the contrary (recital 374 of the contested decision).
37. In so far as concerns the liability of Elf Aquitaine, the Commission pointed out that that company had had a 98% shareholding in the applicant and had always appointed the members of its board of directors. Thus, the Commission presumed that Elf Aquitaine exerted a decisive influence over the conduct of its subsidiary (recital 427 of the contested decision).
38. As regards Total, the Commission stated that that company had acquired 99.43% of the share capital of Elf Aquitaine in April 2000 and controlled directly or indirectly the capital of the company within the group that played a direct role in the unlawful conduct and that, given those facts, it had presumed that Total exercised a decisive influence over the conduct of its subsidiaries Elf Aquitaine and the applicant (recitals 428 and 429 of the contested decision).
39. In recitals 430 to 432 of the contested decision, the Commission summarised the arguments raised by the applicant and by Total and Elf Aquitaine against the imputation of the infringement to the latter companies and went on to examine them in recitals 433 to 440 of the decision.
40. In recital 441 of the contested decision, the Commission confirmed its finding that the applicant, Total and Elf Aquitaine formed a single undertaking and held them liable for the infringement in question, with the proviso that Total was liable for the infringement only from the date on which it acquired control over Elf Aquitaine’s capital, that is to say, from 30 April to 31 December 2000.
41. The applicant disputes that finding, raising, in substance, two complaints concerning, first, breach of the rules on imputation and, second, breach of the principle of equal treatment.
The alleged breach of the rules on holding a parent company liable for infringements committed by its subsidiary
42. The applicant stated at the hearing that it did not dispute the finding of the infringement at issue, but simply the imputation of the infringement to Total and Elf Aquitaine, inasmuch as that imputation had consequences for the amount of the fine.
43. It maintains, in substance, that the fact that the parent company holds the entire capital of its subsidiary or, a fortiori, the fact that it holds almost the entire capital of its subsidiary does not, by itself, support the automatic conclusion that the parent company does in fact exercise a decisive influence over its subsidiary or permit liability to be attributed to the parent company for an infringement committed by its subsidiary. The Commission erred in law by holding the applicant’s parent companies liable for the infringement solely on the basis of the presumption arising from the fact that they hold almost all of its share capital.
44. It must be observed in this connection that the method which the Commission followed in order to impute the infringement in question to Total and Elf Aquitaine, in so far as it was based upon that presumption, is consistent with the case-law cited in paragraphs 27 to 34 above.
45. First, contrary to what the applicant appears to suggest, the imputation was not based solely upon the ownership structure of the capital, but also upon a finding that the presumption of the exercise of a decisive influence was not rebutted (see, in particular, recitals 437 and 441 of the contested decision).
46. Second, it is clear from the case-law (see, in particular, paragraphs 33 and 34 above) that the ownership structure of the capital of a subsidiary does provide sufficient grounds for such a presumption and that the Commission is not required to adduce further evidence in relation to the parent company’s actual exercise of a decisive influence, as the applicant demanded.
47. That conclusion is not called into question by the fact that additional evidence of that kind was put forward in the case which gave rise to the judgment of the General Court in Case T‑112/05 Akzo Nobel and Others
v Commission [2007] ECR II‑5049, paragraphs 13 and 54. Indeed, it is unambiguously clear both from the judgment of 12 December 2007 in Akzo Nobel and Others
v Commission, paragraphs 61 and 62, and the judgment of 10 September 2009 in Akzo Nobel and Others
v Commission, paragraph 27 above, paragraphs 61 and 62, that the application of the presumption in question is not conditional upon the existence of such evidence. Similarly, the Commission is not required to prove, for this purpose, that the parent company was aware, at the material time, of the infringing conduct of its subsidiary.
48. It should also be observed that the abovementioned case-law specifically concerns the particular case where a parent company owns 100% of the capital of its subsidiary ( Akzo Nobel and Others
v Commission, paragraph 27 above, paragraph 60), whereas, in the present case, Total and Elf Aquitaine did not own all the applicant’s capital (see paragraph 2 above).
49. Nevertheless, it must be emphasised that the applicant has put forward no argument based on the fact that Total and Elf Aquitaine did not have 100% shareholdings. On the contrary, it stated during the hearing that it was not arguing that this factor ‘fundamentally alter[ed] matters in terms of the legal control’ of the subsidiary, thus confirming that it did not oppose the application of the same rule of evidence both to situations where there is total control over the capital and to situations where there is almost total control over the capital.
50. The present complaint must therefore be dismissed.
The alleged breach of the principle of equal treatment
51. The applicant maintains that, by relying solely on the presumption in question with regard to its parent companies, the Commission practised ‘unfair discrimination’ in the taking of evidence. The applicant was the only subsidiary in respect of which the Commission did no more than rely upon the presumption. In respect of the other undertakings concerned, it adduced further material on the exercise by the parent companies of a decisive influence.
52. It must be observed in this connection that it is clear from recitals 370 to 379 of the contested decision that the Commission applied the same rule, according to which control over all or almost all of the share capital of a subsidiary provides sufficient grounds for a rebuttable presumption which makes it possible to impute liability to the parent company, to all the addressees of the decision. The presumption in question was in fact applied both to the Total group and to the other groups of companies concerned by the contested decision.
53. The fact that, in the case of certain addressees of the contested decision, namely Akzo Nobel, FMC, L’Air liquide, SNIA and Edison, the Commission relied, in addition to the presumption, upon certain other indications of the exercise by the parent companies of a decisive influence does not mean that the principles applied were not the same for all addressees.
54. Indeed, as regards Akzo Nobel, recital 384 of the contested decision clearly states that ‘due to the 100% shareholding by Akzo the Commission considers that Akzo has exercised a decisive influence on EKA [Chemicals] … and no element was put forward to rebut this presumption’. That conclusion is not contradicted by the fact that, in recital 385 of the decision, the Commission referred to certain additional indications which tended to confirm it.
55. As regards FMC, the Commission stated that it based its conclusion as to its liability ‘on the fact that FMC Foret [was an] (indirectly) wholly‑owned subsidiary of FMC’ (recital 390 of the contested decision). That conclusion is without prejudice to the fact that, in recital 391 of the decision, the Commission referred to an additional indication of the exercise by FMC of a decisive influence over its subsidiary.
56. As regards Air liquide, the Commission stated in recital 403 of the contested decision that, ‘given the 100% shareholding that existed at the time of the infringement between Chemoxal and Air Liquide as well as the power that Air Liquide had to appoint the Directors at Chemoxal, [it had] presumed the exercise of decisive influence by Air Liquide over the conduct of its subsidiary Chemoxal’. The Commission qualified that conclusion by stating, in recital 405 of the decision, that ‘the 100% ownership [led] to a presumption which [could] be rebutted by showing that … the subsidiary benefit[ed] from … autonomy’.
57. As regards SNIA, recital 411 of the contested decision states that its liability derived from the fact that it merged with the company which was the 100% parent company of the entity that was directly involved in the infringement, a situation thus not comparable to that of the applicant.
58. Lastly, as regards Edison, the Commission stated in recital 418 of the contested decision that ‘it was in absence of a rebuttal that the 100% shareholding was considered [by the case-law] a sufficient element’. Furthermore, in recitals 419 to 421 of the decision, the Commission referred to certain additional elements which it held to contradict Edison’s allegation of the independence of its subsidiary.
59. It is thus clear from the abovementioned recitals of the contested decision that the Commission held, with regard to all the addressees of the decision, that control over all or almost all of the share capital of the subsidiary, in the absence of argument refuting the resulting presumption, provided sufficient grounds to impute liability to the parent company. Additional indications of the exercise by certain parent companies of a decisive influence over their subsidiaries were set out, where available, either to reinforce the conclusion that had already been validly drawn from the fact of control over the whole of the subsidiary’s share capital or to answer the arguments developed by the undertakings concerned.
60. Furthermore, in so far as the group to which the applicant belonged is concerned, in addition to the links of a capital nature, the Commission also mentioned the fact that the members of the applicant’s board had been appointed by Elf Aquitaine (recital 427 of the contested decision), albeit without making the imputation of the unlawful conduct of wholly‑owned subsidiaries or almost wholly‑owned subsidiaries to their parent company dependent upon the existence of additional indications.
61. Consequently, the present complaint must be rejected as unfounded and, accordingly, the first plea must be rejected in its entirety.
The second plea in law, alleging errors of fact in relation to the imputation of the infringement to Total and Elf Aquitaine
62. The applicant maintains that, even if it were to be admitted that the method of relying upon the presumption in question were valid, the Commission had no grounds, in fact, to impute the infringement to Total and Elf Aquitaine.
63. First of all, it maintains that it had called the imputation into question by demonstrating that the managers of Elf Aquitaine and Total had had no involvement whatsoever in the unlawful practices in question.
64. It is appropriate to point out in this connection that the Commission imputed the infringement in question to Total and Elf Aquitaine on the ground that, at the material time, they formed a single undertaking with the applicant. In reaching that conclusion, the Commission relied on the presumption arising from the fact that they controlled almost all of the applicant’s share capital and held that that presumption had not been rebutted during the administrative procedure.
65. Since that conclusion was thus not founded upon the involvement of the applicant’s parent companies in the unlawful conduct, the applicant’s argument based upon the absence of any direct involvement on the part of the managers of those companies and upon their ignorance of the facts alleged to constitute the infringement cannot call it into question.
66. Second, the applicant maintains that it rebutted the presumption in question by showing, during the administrative procedure, that it enjoyed autonomy in determining its commercial policy.
67. According to the case-law cited in paragraph 34 above, in order to rebut the presumption at issue, it is necessary for the parent company to adduce sufficient evidence to demonstrate that its subsidiary acts independently on the market.
68. In this connection, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case ( Akzo Nobel and Others
v Commission, paragraph 27 above, paragraphs 61 and 74).
69. It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, the presumption in question cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see, to that effect, Akzo Nobel and Others
v Commission, paragraph 27 above, paragraphs 65 and 67).
70. In the present case, it is clear from the file that, in its reply to the statement of objections, the applicant argued, in substance, that its commercial policy had never been defined by its parent companies, in particular, in view of the group’s structure and the fact that the activities concerned by the infringement represented only a small proportion of the group’s total turnover.
71. It must immediately be pointed out that that argument rests purely upon mere assertions, the applicant having failed to adduce any concrete evidence in support of its argument that it acted independently on the market. In particular, the relevant part of its reply to the statement of objections makes no reference to any document in support of the assertions which it contains.
72. The arguments which the applicant put forward in its reply to the statement of objections were thus manifestly incapable of constituting a body of evidence sufficient to rebut the presumption in question.
73. It should also be pointed out that, in addition to their not being supported by appropriate evidence, the arguments in question were not such as to demonstrate the applicant’s independence.
74. First of all, as regards the applicant’s assertion that Total and Elf Aquitaine were no more than non-operating holding companies, it must be observed that that fact alone is insufficient to disprove that they exercised a decisive influence on the applicant, in particular by coordinating financial investments within the group. Indeed, in the context of a group of companies, a holding company is a company which seeks to regroup shareholdings in various companies and whose function is to ensure that they are run as one (see, to that effect, Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik
v Commission
[2008] ECR II‑2567, paragraph 63).
75. The applicant itself confirms that Elf Aquitaine intervened in the most important decisions that might have an impact at group level and that it decided upon a very general policy in relation to the compatibility of the activities of the various branches, to changes in activities and to the geographical location of its activities worldwide. These assertions tend to confirm that Elf Aquitaine’s function was to ensure unified coordination and management, such as to influence the applicant’s conduct on the market.
76. Second, as regards the applicant’s argument that Total and Elf Aquitaine never intervened in the definition of commercial policy relating to HP and PBS, it must be observed that the division of tasks is a normal phenomenon within a group of companies and cannot rebut the presumption that the applicant, Total and Elf Aquitaine constituted a single undertaking for the purposes of Article 81 EC.
77. Nor can any conclusions be drawn from the fact that the parent companies never had any customers in common with the applicant, that they did not operate on the markets on which the applicant was present, or on any related markets, and that the activity relating to the products in question represented only a very small share of the group’s total turnover.
78. Third, as regards the applicant’s argument that there was no information and reporting system between it and its parent companies, except for the reporting of accounting and financial regulation information required by law, the Court observes that, given that the independence of the subsidiary is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent.
79. Fourth, as regards the point which the applicant raised for the first time before the Court, namely the fact that it became a separate company, from a capital point of view, from the Total group on 18 May 2006, it should be pointed out that that separation, which post-dates the infringement and the adoption of the contested decision, cannot be regarded as a relevant indicator of the links between the companies in question during the period of the infringement.
80. Fifth, as regards the applicant’s argument that the position adopted by the Commission in the contested decision is different from that which it adopted in Decision C(2003) 4570 of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides), it must be observed that it is clear from recitals 373 to 391 of that decision that the Commission did not analyse the question of the liability of the applicant’s parent company at all and, in particular, expressed no position on the question of its independence from its parent company.
81. It must be borne in mind in this connection that the Commission is not required always to check whether the unlawful conduct of a subsidiary may be imputed to its parent company (see, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others
v Commission
[2006] ECR II‑5169, paragraphs 330 and 331). Consequently, the mere fact that the Commission did not consider the possibility of addressing Decision C(2003) 4570 to the applicant’s parent company does not prevent it from doing so in the present case, in accordance with the principles established by the case-law on imputability.
82. In light of the foregoing, it must be held that the Commission was right to conclude that the evidence adduced by the applicant, even taken as a whole, was insufficient to rebut the presumption in question.
83. In so far as concerns the document which the applicant produced as an annex to its application, entitled ‘Internal powers and spending commitments’, by which it sought to support its argument that Total restricted itself to approving the subsidiary’s most important investments, it must be observed that the applicant did not refer to that document in its reply to the statement of objections and consequently it cannot be relied upon in order to dispute the Commission’s assessment in the contested decision.
84. In any event, it must be pointed out that the document in question does not constitute evidence capable of establishing the applicant’s independence in that, first, as is clear from its reply to the request for information addressed to it during the administrative procedure, it contains the rules governing the right to commit the group that applied ‘from 2001 onwards’ and not, therefore, relating to the period of the infringement in question and, second, the fact that the intervention of the ultimate parent company of the group in its subsidiary’s commercial policy was restricted to investments over a certain threshold is not sufficient to establish the subsidiary’s independence.
85. In light of those considerations, it must be held that the Commission was right to conclude that the evidence adduced by the applicant in response to the statement of objections was insufficient to rebut the presumption in question.
86. Accordingly, the second plea must be rejected.
The third plea in law, alleging breach of the duty to state reasons and the principle of sound administration
87. The applicant argues that, by failing to answer the arguments which it put forward to demonstrate its independence, the Commission breached the duty to state reasons and the principle of sound administration.
88. First of all, as regards the duty to state reasons, it maintains that the Commission failed to express a position on the arguments summarised in recital 431 of the contested decision, based on the fact that Elf Aquitaine’s appointment of the members of its board did not in itself prove the exercise of effective control and that the applicant enjoyed complete autonomy in its commercial policy. Moreover, the Commission failed to set out certain arguments put forward by the applicant relating to the fact that the managers of Total and Elf Aquitaine had never been involved in the practices referred to in the contested decision and that the control exercised by those parent companies was restricted to approving the most important investments.
89. It has been consistently held that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission
v Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63 and the case-law cited).
90. Where, as in the present case, a decision taken in application of Article 81 EC relates to several addressees and raises a problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each of its addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, in regard to a parent company held jointly and severally liable for the infringement, such a decision must contain a detailed statement of reasons for attributing the infringement to that company (see, to that effect, Case T‑327/94 SCA Holding
v Commission
[1998] ECR II‑1373, paragraphs 78 to 80).
91. It follows that, where, as in the present case, the Commission relies upon the presumption that a parent company exercises a decisive influence over the conduct of its subsidiary, and the companies concerned put forward arguments during the administrative procedure to rebut that presumption, the decision must contain a sufficient statement of the reasons to justify the Commission’s opinion that those arguments were not such as to rebut the presumption.
92. It must be observed in this connection that it is clear from recitals 430 to 441 of the contested decision that the Commission gave a reasoned response to the arguments put forward by the applicant and its parent companies during the administrative procedure.
93. Indeed, after describing, in recitals 430 to 432 of the contested decision, the arguments put forward by the undertakings concerned in their replies to the statement of objections, the Commission replied to the arguments raised by them relating, essentially, to the unlawful nature of the imputation of the conduct on the basis of the presumption, in light, in particular, of the principle of the independence of legal entities, the principle that penalties must be specific to the offender and the offence, the principle of personal liability, the presumption of innocence and the principle of the equality of arms.
94. In addition, in recitals 433 to 441 of the contested decision, the Commission held that the presumption arising from the fact that Elf Aquitaine and Total held almost all of the applicant’s share capital had not been rebutted and that the conclusion that those companies were liable for the infringement had to be maintained on the basis of that presumption.
95. The Court considers that, by those reasons, the Commission also replied to the essential points of the applicant’s arguments.
96. Moreover, since the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned (Case T‑349/03 Corsica Ferries France
v Commission [2005] ECR II‑2197, paragraph 64; see also, to that effect, Commission
v Sytraval and Brink’s France, paragraph 89 above, paragraph 64), it cannot be criticised for not replying specifically to each argument relied on by the applicant. Indeed, an all-encompassing answer such as that given in the present case may, depending on the circumstances of the case, be sufficient for the undertaking to be able properly to defend its rights and for the Court to exercise its power of review.
97. The succinct nature of the reasoning in the contested decision on this point is, moreover, justified by the fact that the arguments upon which the applicant relied consisted in mere assertions and were not supported by concrete evidence of its alleged independence on the market.
98. In this connection, as regards, more specifically, the applicant’s argument that the Commission failed to set out in recitals 430 to 432 of the contested decision its allegation that the control exercised by the parent companies was restricted to approving the most important investments, it must be observed that that allegation is contained within the allegation that ‘[the applicant] enjoy[ed] complete autonomy in its commercial policy and conduct on the market’, which is set out in the fourth indent of recital 431 of the contested decision and which was rejected as insufficient in the framework of the all-encompassing answer given to the counter-evidence in question in recital 437 of the decision, which states that ‘the presumption of decisive influence ... has not been rebutted’.
99. Moreover, it must be borne in mind that the succinct nature of that answer is justified by the fact that the allegations in question were not supported by any concrete evidence.
100. As regards the argument that the managers of Total and Elf Aquitaine had never been involved in the unlawful practices, it is clear from paragraphs 64 and 65 above that the Commission made no reference to this factor in holding the applicant’s parent companies liable for the infringement in question, and thus its failure expressly to state its position on this argument cannot entail any breach of the duty to state reasons.
101. As regards the fact that the Commission did not explicitly answer the argument, summarised in recital 431 of the contested decision, that the appointment by Elf Aquitaine of the members of the applicant’s board did not prove the exercise of effective control, it must be pointed out that it is clear from recitals 427 to 429 of the decision that that factor was mentioned, along with the presumption in question, but did not of itself lead to the imputation of the applicant’s infringement to its parent companies. Consequently, the absence of any explicit answer to the argument in question did not prevent the applicant from ascertaining the reasons for the imputation, or from disputing it before the Court.
102. Lastly, as regards the applicant’s argument that the standard of the duty to state reasons in this case is higher since the contested decision is based upon an innovative approach, it must be observed that the presumption of the exercise by a parent company of a decisive influence over its subsidiary, based purely upon their links of a capital nature, has already been applied by the Commission, in particular, in Decision C(2004) 4876 of 19 January 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel, Akzo Nobel Nederland BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB, EKA Chemicals, Akzo Nobel AB, Atofina, Elf Aquitaine, Hoechst AG, Clariant GmbH, Clariant AG (Case E‑1/37.773 – MCAA), in which it imputed the infringement committed by the applicant to Elf Aquitaine. The applicant cannot therefore maintain that the Commission has adopted a radically new position with regard to its parent companies in this case.
103. In any event, the Commission did not restrict itself in the contested decision to giving a summary statement of reasons. It set out explicitly, with references to the case-law of the Court of Justice and the General Court, both the principles which it intended to apply in order to identify the addressees thereof (recitals 370 to 379 of the contested decision) and the application of those principles to the Total group (recitals 427 to 441 of the decision).
104. Consequently, the complaint alleging breach of the duty to state reasons is unfounded.
105. Second, the applicant maintains that the Commission breached the principle of sound administration by relying upon a mere presumption of the exercise of a decisive influence and failing to examine carefully the evidence adduced to rebut that presumption, in particular, the evidence relating to the lack of relevance of Elf Aquitaine’s appointment of the members of the applicant’s board and to the applicant’s independence in deciding its commercial policy.
106. As is clear from paragraphs 98 to 101 above, the succinct nature of the answer given to those points in the contested decision is justified, in so far as concerns the allegation relating to the applicant’s independence, by the fact that that allegation was not supported by any concrete evidence, and, in so far as concerns the argument disputing the relevance of the appointment of the members of the board, by the superfluous nature of that aspect, which did not of itself lead to the imputation in question. The succinct nature of that answer therefore does not allow the conclusion to be drawn that the duty to examine carefully and impartially the relevant matters arising in the administrative procedure was breached.
107. Moreover, it is evident from a reading of recitals 434 to 441 of the contested decision that the Commission examined the arguments of the applicant and its parent companies, summarised in recital 431 of the decision, by which they sought to dispute the imputation of the infringement in question. An analysis of the reply to the statement of objections reveals no other relevant factors that the Commission might have overlooked.
108. It follows that the present complaint alleging breach of the principle of sound administration is unfounded.
109. In light of the foregoing, the third plea must be rejected.
The fourth plea in law, alleging errors of law and fact in relation to the increase in the amount of the fine in respect of deterrent effect
110. First, the applicant maintains that the Commission erred in law by applying the increase in question on the basis of the turnover achieved by Elf Aquitaine and Total, in that they ought not to have been held liable for the infringement.
111. It must be observed that this complaint rests entirely upon the premiss that the infringement in question ought not to have been imputed to the applicant’s parent companies, which was rejected in the context of the Court’s examination of the first and second pleas. It must therefore immediately be rejected.
112. Second, the applicant maintains that the Commission breached the principles of proportionality and equal treatment by taking account, in applying the increase in question, of the group’s size and turnover, without having proved that the managers of the parent companies had taken part in the infringement or that the group’s resources had been used by the subsidiary.
113. It must be borne in mind that, according to settled case-law, in order to determine the amount of the fine, the Commission must ensure that it has the necessary deterrent effect and may, in this respect, take into consideration, inter alia, the size and economic power of the undertaking in question (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraphs 106 and 120, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 243).
114. It must be recalled that the need to ensure that the fine has a sufficient deterrent effect requires that the amount of the fine be adjusted so that the fine is not rendered negligible, or on the other hand 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 (Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraph 283, and Case T‑410/03 Hoechst
v Commission
[2008] ECR II‑881, paragraph 379).
115. In particular, where the undertaking concerned would find it easier to find the funds necessary to pay its fine, that may justify the application of a multiplier, in order to ensure that the fine is sufficiently deterrent (see, to that effect, Case C‑289/04 P Showa Denko
v Commission
[2006] ECR I‑5859, paragraph 18; Degussa
v Commission, paragraph 114 above, paragraph 284; and Hoechst
v Commission, paragraph 114 above, paragraph 379).
116. Thus, in the present case, the Commission was legally entitled to increase the starting amount of the fine in question, given the overall size of the undertaking comprising the applicant, Total and Elf Aquitaine.
117. Moreover, as regards the consideration, justified, in particular, by the fact that the undertaking concerned might find it easier to find the funds necessary to pay its fine, the Commission was not, contrary to the applicant’s submission, required to establish any link between use of the undertaking’s resources and the commission of the infringement, but could legally take into account the overall size of the undertaking.
118. Since the increase in question may legally be based upon the size of the undertaking in question and the question of which resources are used in the commission of the infringement is irrelevant, the increase in question cannot constitute a breach of the principle of equal treatment merely because no distinction was made in its application between the infringing undertakings by reference to that criterion.
119. As regards the applicant’s claim that the increase in question is disproportionate, first of all, the Court would point out that the infringement being punished corresponds to conduct which the Commission has found to be unlawful time and time again since it first became active in the field, which fully justifies the setting of the fine at a sufficiently deterrent level (see, to that effect, Joined Cases T‑101/05 and T‑111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraphs 46 and 47).
120. Next, the Commission has a margin of discretion when setting the amount of fines, in order that it may channel the conduct of undertakings towards compliance with the competition rules. In this respect, in view of the size of the undertaking in question, evidenced by the particularly high worldwide turnover of Total and Elf Aquitaine in the last financial year preceding the adoption of the contested decision (recital 463 of the decision), the increase in question, arrived at by applying a multiplier of 3, cannot be regarded as disproportionate in light of the purpose of deterrence.
121. Consequently, the fourth plea must be rejected.
The fifth plea in law, alleging errors of law and fact in relation to the increase in the amount of the fine on account of repeated infringement
122. The present plea falls into two limbs.
The first limb, alleging breach of the principle that penalties must have a proper legal basis and the principle of legal certainty
123. In its application, the applicant argues that, by having regard to earlier adverse findings, relating to facts that occurred over 20 years prior to the adoption of the contested decision, the Commission has infringed the principle that penalties must have a proper legal basis and the principle of legal certainty.
124. At the hearing, the applicant stated that, having learned of the Court of Justice’s judgments in Case C‑3/06 P Groupe Danone
v Commission [2007] ECR I‑1331 and Case C‑413/08 P Lafarge
v Commission
[2010] ECR I‑5361, it was withdrawing the present limb of the fifth plea, although it was pursuing the argument which it developed in the context of the second limb of the plea, alleging breach of the principle non bis in idem and the principle of proportionality, as was noted in the minutes of the hearing.
125. It is therefore no longer necessary for the Court to examine the first limb of the plea.
The second limb, alleging breach of the principle non bis in idem
and the principle of proportionality
126. First of all, the applicant argues that the Commission has breached the principle non bis in idem, in that the same previous adverse findings as those relied upon in the contested decision had already been taken into account in two earlier decisions, Decisions C (2003) 4570 and C (2004) 4876.
127. It must be borne in mind that the application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of the offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset (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, paragraph 338).
128. First, it must be observed that, since, in taking previous infringements into consideration in the contested decision the Commission did not seek to punish those infringements again, but only to penalise the applicant for its participation in the cartel referred to in the contested decision, by taking account of its conduct constituting repeated infringement, the fact that the Commission had already taken the same infringements into consideration in two earlier decisions does not amount to a breach of the principle non bis in idem.
129. Second, and in any event, it must be observed that the cumulative conditions of the applicability of the principle non bis in idem
set out in paragraph 127 above are not satisfied, since the condition of identity of the facts is absent. In the contested decision, the Commission penalised the applicant on account of its participation in the cartel, in respect of which it had not previously initiated proceedings or adopted penalties, which the applicant, moreover, does not claim to be the case.
130. The Commission therefore did not breach the principle non bis in idem
by taking Decisions 85/74 and 94/599 into account in finding that the applicant’s conduct constituted repeated infringement in the contested decision, even though it had already taken that same aggravating circumstance into account in Decisions C (2003) 4570 and C (2004) 4876.
131. Accordingly, the applicant’s complaint must be rejected as unfounded.
132. Second, in so far as the applicant maintains that the Commission breached the principle of proportionality by applying, in the contested decision, an increase of the basic amount of the fine on account of repeated infringement, first, the applicant’s argument that, because the same aggravating circumstance was taken into account in Decisions C (2003) 4570 and C (2004) 4876, the objective of deterrence was already satisfied, must be rejected as unfounded.
133. Indeed, the fact that the Commission had already taken account of Decisions 85/74 and 94/599 to reach a finding of repeated infringement in the context of other infringements did not prevent it from taking those two decisions into account in the contested decision for the purpose of assessing the severity of the infringement in question, in order to deter the applicant from repeating its unlawful conduct in the future.
134. Each of those earlier infringements constituted, independently of the other, a repetition of the conduct infringing the competition rules found in Decisions 85/74 and 94/599, which showed a tendency on the applicant’s part not to draw the appropriate conclusions from those adverse findings (see, to that effect, Groupe Danone
v Commission, paragraph 124 above, paragraph 40).
135. Second, the applicant’s argument that the Commission breached the principle of proportionality in imposing on it a new increase to reflect repeated infringement when that circumstance had already been taken into account in Decisions C (2003) 4570 and C (2004) 4876 and when, consequently, it had been given no opportunity to adjust its conduct, must be rejected as ineffective. Indeed, since the Commission did not rely on those decisions in order to establish that the applicant’s conduct consisted in repeated infringement, the fact that they were adopted after the infringement punished in the contested decision had ended is irrelevant in the present case.
136. In light of those considerations, the applicant’s complaint that the Commission breached the principle of proportionality and, consequently, the second limb and the present plea in its entirety also must be rejected.
The sixth plea in law, alleging errors of law and fact in relation to the reduction in the amount of the fine in application of the Leniency Notice
137. Points 21 to 23 of the Leniency Notice provide as follows:
‘21. In order to qualify [for a reduction in the amount of the fine], an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
22. The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.
23. The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b) the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
– first undertaking to meet point 21: a reduction of 30-50%,
– second undertaking to meet point 21: a reduction of 20-30%;
– subsequent undertakings that meet point 21: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
138. In the present case, the Commission found that Degussa satisfied the conditions to qualify for total immunity from any fine. EKA Chemicals, the applicant and Solvay, which were regarded as respectively the first, second and third undertakings to have satisfied the requirements of point 21 of the Leniency Notice, received fine reductions of 40%, 30% and 10% respectively (recitals 501 to 524 of the contested decision).
139. By the present plea, the applicant maintains, in substance, that the contested decision is vitiated by errors of fact and law and that the Court ought to grant it an additional reduction in the amount of the fine in light of the extent and value of its cooperation during the administrative procedure.
140. The present plea falls into four limbs.
The first limb, alleging an error of law in the interpretation of the Leniency Notice
141. The applicant maintains that the Commission erred in law, in recital 512 of the contested decision, by interpreting the Leniency Notice from the viewpoint of the time factor alone and by treating the date of the submission of evidence as the essential criterion in its application. In particular, it maintains that it provided the most important contribution to establishing the infringement and that the significant added value of its contribution justified its being regarded as the ‘first undertaking’ for the purposes of point 23 of the Leniency Notice.
142. It is apparent from the undisputed facts of the contested decision that EKA Chemicals made its leniency application on 29 March 2003, made an oral statement on 31 March 2003 and provided evidence of the infringement during the same week (recitals 67, 503 and 505 of the contested decision).
143. It is also undisputed that it was after those events that the applicant sent the Commission its leniency application, accompanied by 13 annexes stating that they contained documents concerning the cartel in question, by fax of 3 April 2003, at 15.50 hrs. On 26 May 2003, the applicant submitted to the Commission new material relating to its leniency application, including explanations on the documents sent on 3 April 2003 (recitals 69, 510 and 516 of the contested decision).
144. In the contested decision, the Commission stated that EKA Chemicals had been the first undertaking to meet the requirements of point 21 of the Leniency Notice, since, on 29 and 31 March 2003, it had produced evidence which represented significant added value with respect to the evidence already in the Commission’s possession at the time of its submission (recital 503) and that the applicant had been the second undertaking to meet the same requirements, by providing the evidence submitted on 3 April 2003 (recital 509).
145. In recital 512 of the contested decision, with which the applicant takes issue, the Commission stated:
‘… It is clear from point 23 of the Leniency Notice that the time of submission of any submission that meets the threshold of significant added value is determinant for the band of reduction. The evidence submitted is compared with the evidence already in [the] Commission’s possession at the time such evidence is provided. Therefore, in order to establish whether this submission represents significant added value, only the elements already in the Commission’s file and the evidence provided by the applicant are taken into account. The Commission has already explained that it considers that the submission of EKA [Chemicals] of 29 March 2003, together with the corporate statement of 31 March 2003, met the threshold of significant added value with respect to the evidence already in the Commission’s possession, as set out in point 21 of the Leniency Notice. This results in EKA [Chemicals] being placed in the first band pursuant to point 23 of the Leniency Notice. This means that the value of [the applicant’s] submissions can only be relevant for establishing a possible level of reduction within the subsequent band.’
146. The Court notes, in this respect, that, according to points 21 and 23 of the Leniency Notice, in order to qualify for a reduction of the fine, an undertaking must provide the Commission with evidence which represents significant added value with respect to the evidence which was already in its possession.
147. Moreover, for the purposes of applying the bands of reduction of the fine provided for in point 23(b) of that notice, the Commission must establish the time at which the undertaking satisfied that requirement.
148. That interpretation is supported by the general scheme of the system laid down by the notice in question, which provides for three separate bands for the ‘first’, ‘second’ and ‘subsequent’ undertakings meeting the requirement in question, which therefore implies that the Commission is required to determine the precise time at which the conditions for a reduction of the fine are met by the undertaking concerned, by comparing the evidence provided with that already in its possession when the application is made.
149. In light of those considerations, the Commission was right, in applying the bands referred to in point 23 of the Leniency Notice, in recitals 503 to 509 of the contested decision, to take account of the time at which EKA Chemicals and the applicant respectively met the requirements of point 21 of the Leniency Notice.
150. Those considerations are not called into question by the applicant’s arguments by which it disputes the approach adopted, on a number of grounds.
151. First of all, the interpretation which the applicant puts forward, according to which the reference to the ‘first’ undertaking in point 23 of the Leniency Notice must be understood as referring to the undertaking whose submission of evidence has the highest added value, is in no way borne out by the terms of that point, which specifically refer to the ‘first undertaking to meet point 21’, that is to say, the condition of providing evidence which represents significant added value with respect to the evidence already in the Commission’s possession when the application is made.
152. Second, the applicant is mistaken in its complaint that the Commission adopted an approach that focused ‘solely on the time factor’, which amounted to rewarding the first undertaking to cooperate and thus relying upon ‘the timing alone, regardless of the extent to which the submission of evidence represented added value’.
153. As is clear from recitals 503, 509 and 515 of the contested decision, on classifying the undertakings which made a leniency application within the bands provided for in point 23 of the Leniency Notice, the Commission did not rely solely upon the order in which the undertakings made their applications, but took account of the value of their submissions of evidence, examining, in accordance with the condition laid down in point 21 of the notice, whether the evidence submitted offered significant added value with respect to the evidence already in its possession when the particular application was made.
154. Contrary to the applicant’s submission, that approach of taking account of both the timing and the value of the submission of evidence and rewarding the undertaking which first satisfies the conditions for obtaining a reduction, is consistent with the objectives pursued by the Leniency Notice in that it encourages undertakings wishing to cooperate to do so as early as possible in the inquiry by providing, as soon as they apply for leniency, all the evidence available to them. In particular, by creating an incentive to meet the threshold of significant added value with their first application for leniency, it prevents undertakings making an application for leniency from measuring their efforts to cooperate, piecemeal, throughout the procedure.
155. Third, since the Leniency Notice is based on an approach which requires the precise chronological order of applications for leniency to be established, in accordance with the objectives of transparency and legal certainty, no distinction may be made in its application according to whether the lapse of time between applications is long or short. Consequently, the applicant cannot rely upon the circumstance that, in this case, only a few days elapsed between the applications made by EKA Chemicals and itself, and only a few hours between Solvay’s application and its own.
156. Fourth, the applicant can draw no argument from the solution adopted in Case T‑116/04 Wieland-Werke
v Commission
[2009] ECR II‑1087, paragraph 127, according to which, in assessing the degrees of cooperation provided by two undertakings, the timing cannot be taken into account in situations where the information sent by the parties concerned was sent within a fairly brief lapse of time and at an essentially identical stage of the administrative procedure.
157. Suffice it to recall that the solution referred to relates to Section D of the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4), which makes no reference to the criterion of whether one undertaking started to cooperate before another. Moreover, in the judgment referred to, the Court rejected the argument that point 23 of the Leniency Notice was applicable, by analogy, to the case at hand ( Wieland-Werke
v Commission, paragraph 156 above, paragraphs 126 and 129).
158. Fifth, in so far as the applicant relies upon the rules applicable in certain Member States, suffice it to observe that the leniency programme adopted by the Commission is autonomous and thus the programmes applied by the competition authorities of the Member States cannot undermine the interpretation to be given to the provisions of points 21 and 23 of the Leniency Notice.
159. Sixth, as regards the model leniency programme drawn up by the European Competition Network in September 2006, it must be pointed out that that model, which was intended, in particular, to lead to the voluntary harmonisation of the leniency programmes applied by the members of the network, post-dates the adoption of the Leniency Notice and cannot therefore provide any guidance on its interpretation.
160. In any event, paragraph 11 of the model, to which the applicant refers and which states that ‘in order to determine the appropriate level of reduction of the fine, the [competition authority] will take into account the time at which the evidence was submitted (including whether the applicant was the first, second or third, etc. undertaking to apply) and the [competition authority’s] assessment of the overall value added to its case by that evidence’, in no way precludes the approach adopted by the Commission in the present case, which is based upon precisely those same factors. As regards the precise combination of the aspects relating to the timing and the value of the evidence, explanatory note 24 of the model states that there are ‘various ways of combining these parameters to reward the contribution of the applicant’, at the same time emphasising the importance of ‘a significant difference between immunity from fines and reductions of fines in order to make applications for immunity significantly more attractive’, which is not in issue in the present case.
161. Lastly, in so far as, in its application, the applicant ‘invites the Court to consider of its own motion the possible illegality of the provisions in question of the Leniency Notice, in light of general legal principles, and in particular the principles of equal treatment, proportionality and equity’, suffice it to observe that that last argument in no way differs from those which the Court has already examined and rejected. It cannot, therefore, be upheld.
162. Consequently, the first limb of the present plea must be rejected.
The second limb, alleging that the added value of the evidence submitted by the applicant was higher than that of the evidence submitted by EKA Chemicals
163. The applicant maintains that, had the Commission interpreted the Leniency Notice correctly, it would necessarily have concluded that it was the first undertaking to meet the requirements for obtaining a reduction of the fine. The evidence which the applicant provided contributed significantly to the Commission’s establishing the infringement and, in particular, offered a much higher added value than that provided by EKA Chemicals.
164. It is clear from the Court’s examination of the first limb of the present plea that the Commission correctly established the order of the undertakings which had met the requirements for obtaining a reduction of the fine, by assessing whether each undertaking had provided evidence representing a significant added value, within the meaning of point 21 of the Leniency Notice, before any other undertaking had met that requirement.
165. Since the Commission found that the evidence provided by EKA Chemicals between 29 and 31 March 2003 had met that requirement, something which the applicant does not dispute in the context of the present limb of the plea, the Commission was right to classify it as the first undertaking, within the meaning of point 23(b) of the Leniency Notice, irrespective of the value of any evidence submitted subsequently, including that provided by the applicant.
166. The second limb of the plea cannot therefore succeed.
The third limb, put forward in the alternative, alleging that the evidence provided by EKA Chemicals offered no significant added value
167. The applicant maintains that the Commission made an error of fact in considering that the evidence provided by EKA Chemicals between 29 and 31 March 2003 had represented ‘significant added value’ within the meaning of points 21 to 23 of the Leniency Notice. According to the applicant, that evidence merely corroborated evidence provided by Degussa and related, in substance, to the Scandinavian market and to bilateral meetings dating back to the beginning of the infringement, before the rules of the game of the multilateral cartel in question had been established.
168. It must be borne in mind in this connection that, although in appraising the cooperation provided by members of a cartel, the Commission may not disregard the principle of equal treatment, it enjoys a broad discretion in assessing the quality and usefulness of the cooperation provided by any given undertaking. Thus, only a manifest error of assessment by the Commission is open to censure (see Wieland-Werke
v Commission, paragraph 156 above, paragraph 124 and the case-law cited).
169. In the present case, the Commission held that EKA Chemicals had produced evidence which represented significant added value with respect to the evidence which was already in its possession on the date of the submission of that evidence (recital 503 of the contested decision).
170. In this respect, first of all, the Court would point out that it is apparent from recital 506 of the contested decision that EKA Chemicals provided contemporaneous documents about certain meetings and other collusive contacts relating to facts previously unknown to the Commission which had a direct bearing on the establishment of the duration of the cartel, as regards the period between 31 January 1994 and 14 October 1997, and evidence corroborating and complementing that submitted by Degussa, in respect of the period between 14 October 1997 and 31 December 1999.
171. As regards the finding that there had been a single infringement covering the whole EEA territory, a fact which the applicant does not dispute, the accuracy of the assessment of the information provided by EKA Chemicals is not undermined by the fact that it related mainly to the Scandinavian market. It should be recalled that EKA Chemicals submitted information about contacts with producers on the ‘continent’ and that, moreover, a number of instances of unlawful conduct related without distinction to the Scandinavian and ‘continental’ markets (see, in particular, recitals 106 and 144 of the contested decision).
172. Next, the fact upon which the applicant relies, namely that the evidence submitted by EKA Chemicals related to a large extent to the initial period of the infringement, does not call into question the significant added value of that evidence. The Court observes that the evidence provided by EKA Chemicals enabled the Commission to determine that the cartel commenced on 31 January 1994 and to establish the facts relating to the initial period of the cartel, between 31 January 1994 and 14 October 1997. Contrary to the applicant’s submission, therefore, that evidence did not merely corroborate the evidence already in the Commission’s possession at the time of the application in question. Moreover, as is clear from recital 506 of the contested decision, the evidence submitted by EKA Chemicals included evidence corroborating and complementing that submitted by Degussa, in respect of the later period between 14 October 1997 and 31 December 1999.
173. Since the value of the evidence submitted by the applicant has no bearing upon that assessment, the applicant cannot validly dispute it by stating that it had offered more detailed evidence relating to the precise operating mechanism of the cartel in question in relation to the periods in question.
174. Lastly, the significant added value of the evidence submitted by EKA Chemicals cannot be called into question by the applicant’s argument based upon the allegedly small number of recitals of the contested decision in which that evidence was used.
175. In light of those considerations, the arguments relied on by the applicant fail to show that the Commission made a manifest error in concluding that EKA Chemicals had submitted evidence offering significant added value, within the meaning of point 21 of the Leniency Notice, before the date of the application for leniency made by the applicant.
176. Accordingly, the third limb of the plea must be rejected.
The fourth limb, put forward in the further alternative, claiming an additional reduction in the amount of the fine for reasons falling outside the scope of the Leniency Notice
177. The applicant argues that the Commission ought to have granted it an additional reduction in the amount of the fine on account of its effective cooperation, outside the scope of the Leniency Notice, in accordance with the Guidelines, so as to reflect the ‘proper value’ of its submission of evidence, having regard to the manifestly inadequate reduction granted it under the Leniency Notice.
178. It is sufficient to recall, in this respect, that, in relation to infringements which fall within the scope of the Leniency Notice, as a rule, an interested party cannot validly complain that the Commission failed to take into account the extent of its cooperation as an attenuating circumstance outside the legal framework of the Leniency Notice (see, to that effect, Case T‑15/02 BASF
v Commission
[2006] ECR II‑497, paragraph 586 and the case‑law cited).
179. That applies a fortiori in the present case, since the Commission took the applicant’s cooperation into account, by reducing the fine pursuant to the Leniency Notice. In those circumstances, the applicant cannot validly complain that the Commission did not apply a further reduction to the fine imposed on the applicant, outside the scope of that notice.
180. Moreover, in so far as the applicant alleges circumstances justifying an exception to that conclusion, maintaining that the value of its contribution had only partially been taken into account under the Leniency Notice, the Commission granted the applicant the maximum reduction of 30%, available within the band applicable to it under point 23 of the Leniency Notice, despite the fact that the applicant had provided additional material only on 26 May 2003, several weeks after its initial application for leniency, which was limited to 13 annexes stating that they contained documents concerning the cartel in question (recitals 510 and 513 of the contested decision).
181. Since its cooperation was rewarded by the grant of the maximum reduction available within the band applicable to it under the Leniency Notice, the applicant cannot in any event validly claim an additional reduction on the same grounds, under the Guidelines.
182. Consequently, the sixth plea must be rejected.
183. As regards the claim, made in the alternative, for the adjustment of the amount of the fine imposed on the applicant, the Court takes the view that there is nothing in this case which justifies a reduction of the fine and therefore there is no cause for it, in the exercise of its full jurisdiction in this regard, to uphold that application.
184. It follows from all the foregoing that the application must be dismissed in its entirety.
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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, which the Commission has applied for.
Operative part
On those grounds,
THE GENERAL COURT (Sixth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders Arkema France SA to pay the costs.