62006TJ0190_EN
Parties
Grounds
Operative part
Parties
In Case T‑190/06,
Total SA,
established in Courbevoie (France),
Elf Aquitaine SA,
established in Courbevoie,
represented by É. Morgan de Rivery, A. Noël-Baron and E. Lagathu, lawyers,
applicants,
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) and, in the alternative, for amendment of Article 2(i) of that decision,
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 applicants, Total SA and Elf Aquitaine SA, are companies incorporated under French law and the ultimate parent companies of the group to which Arkema France SA (formerly Atofina SA, ‘Arkema’) belonged, 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, Elf Aquitaine was the main shareholder in Arkema, holding 97.5% of its shares. From April 2000 onwards, Arkema was held, as to 96.48% of its shares, by Elf Aquitaine, in which Total 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 Arkema.
5. Following those investigations, several undertakings, including EKA Chemicals AB, Arkema 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 applicants 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, the applicants and Arkema (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 applicants 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 applicants and Arkema 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 applicants and Arkema 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 applicants’ high turnover (recital 463 of the contested decision).
15. Since, according to the Commission, Arkema and Elf Aquitaine participated in the infringement from 12 May 1995 until 31 December 2000, namely a period of five years and seven months, the amount of the fine imputed to them 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 Arkema, 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 Arkema by 50% of the basic amount that would have been applied to it had the applicants, 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 Arkema 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 Arkema and the applicants (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 Arkema and Elf Aquitaine.
19. Under Article 2(i) of the contested decision, a fine of EUR 78.663 million was imposed on Arkema, 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 19 July 2006, the applicants 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. By way of measures of organisation of procedure ordered by the Court on 28 April 2010, the Commission produced, by letter of 4 May 2010, certain information from its administrative file to which the applicants had referred in their application.
24. 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.
25. The applicants claim that the Court should:
– annul Article 1(o) and (p), Article 2(i) and Articles 3 and 4 of the contested decision;
– in the alternative, amend Article 2(i) of the contested decision, in so far as the Commission held them jointly and severally liable with Arkema for payment of a fine, and reduce the amount of that fine;
– order the Commission to pay the costs.
26. The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
27. In support of their application for the partial annulment of the contested decision, the applicants put forward ten pleas in law, alleging, first, infringement of the rights of the defence, second, breach of the duty to state reasons, third, breach of the unitary nature of the concept of an undertaking, fourth, breach of the rules on holding a parent company liable for infringements committed by a subsidiary, fifth, errors of assessment in relation to Total, sixth, breach of several essential principles recognised by all the Member States and which form an integral part of the legal order of the European Union, seventh, breach of the principle of sound administration, eighth, breach of the principle of legal certainty, ninth, breach of certain fundamental principles governing the setting of fines, and, tenth, misuse of powers.
28. In the alternative, by their eleventh plea in law, the applicants request a reduction in the amount of the fine imposed under Article 2(i) of the contested decision.
29. The Court considers it appropriate to examine first of all the arguments raised in the context of the fourth plea in law.
The fourth plea in law, alleging breach of the rules on holding a parent company liable for infringements committed by a subsidiary
30. The fourth plea falls into three limbs. It is appropriate to begin by examining the second limb of this plea.
The second limb, alleging an error of law in the interpretation of the case-law relating to imputability and the Commission’s failure to follow its decision-making practice
– Preliminary observations
31. 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).
32. 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 31 above, paragraph 55 and the case-law cited).
33. 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 31 above, paragraph 56 and the case-law cited).
34. 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 31 above, paragraph 57 and the case-law cited).
35. 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 31 above, paragraph 58 and the case-law cited).
36. 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 31 above, paragraph 59).
37. 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 31 above, paragraph 60 and the case-law cited).
38. 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 31 above, paragraph 61 and the case-law cited).
39. 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.
40. 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).
41. In so far as concerns the liability of Elf Aquitaine, the Commission pointed out that that company had had a 98% shareholding in Arkema and had always appointed the members of Arkema’s 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).
42. 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 companies of 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 Arkema (recitals 428 and 429 of the contested decision).
43. In recitals 430 to 432 of the contested decision, the Commission summarised the arguments raised by the applicants against the imputation of the infringement in question and went on to examine them in recitals 433 to 440 of the decision.
44. In recital 441 of the contested decision, the Commission confirmed its finding that Arkema and the applicants 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.
45. The applicants dispute that finding, raising, in substance, two complaints concerning, first, the validity of the presumption in question and, second, the rejection of the evidence put forward to establish Arkema’s independence.
– The validity of the presumption in question
46. The applicants argue, first of all, that the Commission could not, without departing from the case-law and its own decision-making practice in the matter, have held them liable for Arkema’s conduct solely on the basis of the presumption arising from the fact that they control almost all of the share capital of that subsidiary.
47. It must be observed in this connection that the method which the Commission followed in order to impute the infringement in question to the applicants, in so far as it was based upon that presumption, is consistent with the case-law cited in paragraphs 31 to 38 above.
48. First, contrary to what the applicants appear 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 on their subsidiaries was not rebutted (see, in particular, recitals 437 and 441 of the contested decision).
49. Second, it is clear from that case-law (see, in particular, paragraphs 37 and 38 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 applicants demanded.
50. 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 31 above, paragraphs 61 and 62, that the application of the presumption at issue 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.
51. 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 31 above, paragraph 60), whereas, in the present case, the applicants did not own all the capital of the subsidiary in question (see paragraph 2 above).
52. Nevertheless, it must be emphasised that the applicants have put forward no argument based on the fact that they did not have 100% shareholdings. On the contrary, their arguments concerning the Commission’s entitlement to rely upon the presumption in question refer, without distinction, to the situation where ‘100%, or almost 100%’ of the subsidiary’s capital is owned, which confirms that they do not oppose the application of the same rule of evidence in both situations.
53. Lastly, even if, as the applicants submit, the Commission did, in its prior decision-making practice when imputing liability for an infringement, adduce additional evidence in relation to the parent company’s actual exercise of a decisive influence, that fact alone is not sufficient to call into question the method of imputation applied in the present case.
54. The present complaint must therefore be dismissed.
– The body of evidence submitted by the applicants to demonstrate Arkema’s independence on the market
55. According to the case-law cited in paragraph 38 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.
56. 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 31 above, paragraphs 61 and 74).
57. 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 31 above, paragraphs 65 and 67).
58. In the present case, it is clear from the file that, during the administrative procedure, the applicants put forward arguments alleging the independence of Arkema, maintaining, in particular, that their group was characterised by the decentralised management of its subsidiaries, that Arkema defined the strategic direction of its activities independently, that the management of its activities on the market was not subject to instructions from the parent companies, that it accounted to those parent companies only in general terms, that it had financial autonomy and power to enter into contracts without their prior authorisation and that it defined its legal strategy independently. Arkema’s independence was, moreover, confirmed by third-party perception.
59. In support of those arguments, the applicants have merely produced three brochures, issued by Arkema and Elf Aquitaine, entitled ‘Markets and Businesses’, for the years 1995, 2000 and 2003 respectively. Leaving aside the question of what probative weight those documents should be accorded, they clearly contain only fragments of information about the relationship between the applicants and their subsidiary. The documents can therefore, at most, only evidence the fact that Arkema was a decentralised unit, the ‘chemical branch’ within the group, that it became a separate entity in 2006 and that it manufactured a large number of products in different areas. With the exception of the ‘Markets and Businesses’ brochure for 2000, the documents relate to years falling outside the period of the infringement.
60. In addition, in a footnote to their reply to the statement of objections, the applicants referred to certain material given in Arkema’s reply to the Commission’s request for information.
61. The material in question, which the Commission produced in the context of the measures of organisation of procedure of 4 May 2010, includes a document entitled ‘Internal powers and spending commitments’ and a list of the managers of the companies within the group for the years 1991 to 2003.
62. As is clear from Arkema’s reply to the Commission’s request for information, the first document contains the rules governing the right to commit the group that applied ‘from 2001 onwards’. According to that document, Total’s executive committee only involved itself in decisions of its subsidiaries relating to investments of over EUR 10 million, in order to assess risk levels and profitability.
63. First, it must be pointed out that the document in question, which contains rules on the division of responsibilities within the group from 2001 onwards, cannot provide any relevant indication of the links between the companies concerned during the period of the infringement, which ended on 31 December 2000.
64. Second, it is clear from the applicants’ reply to the statement of objections that this document was relied upon in support of the applicants’ argument that they were never involved in the management of Arkema’s activities in relation to HP and PBS, but only in their subsidiary’s most important investments. However, the independence of the subsidiary, for the purposes of the case-law mentioned in paragraph 57 above, cannot, in any event, be established merely by showing that it manages the specific aspects of its policy relating to the marketing of the products concerned by the infringement.
65. As regards the second document, comprising a list of the managers of the companies concerned, it must be pointed out that, whilst the overlapping of managers as between a parent company and its subsidiary is evidence of the exercise of a decisive influence, the absence of such overlapping cannot constitute sufficient evidence of the independence of the subsidiary.
66. It is clear from the foregoing that the arguments which the applicants put forward in their reply to the statement of objections were not supported by concrete evidence of the independence of their subsidiary and were thus, in essence, mere assertions manifestly incapable of constituting a body of evidence sufficient to rebut the presumption in question.
67. It should also be pointed out that the arguments themselves were not such as to demonstrate the independence of their subsidiary.
68. First of all, as regards the applicants’ assertion that Elf Aquitaine was no more than a non-operating holding company, comparable to a simple ‘finance department’, a situation which did not change after Total’s takeover, it must be observed that, even supposing the applicants were no more than non-operating holding companies, that fact alone is insufficient to disprove that they exercised a decisive influence on Arkema, 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).
69. The applicants themselves confirm 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. Far from undermining the argument that there existed an economic entity composed of the applicants and their subsidiaries, these assertions rather confirm that Elf Aquitaine’s function was to ensure that they were coordinated and run as one, in such a way as to influence Arkema’s conduct on the market.
70. Second, as regards the applicants’ assertion that, at the material time, they never intervened in the definition of the strategy relating to any given product in the ‘chemical branch’, it must be observed that that assertion is not supported by sufficient evidence. As regards the dimensions of the group, the allegedly special nature of the chemical business within a petrol company, Arkema’s size and the large number of products which it sold on various markets, it must be observed that those factors cannot, in and of themselves, prove that the applicants never intervened in the definition of the marketing strategy relating to any of the products in the ‘chemical branch’.
71. Third, as regards the applicants’ argument that they never defined Arkema’s commercial policy and were never involved in the management of its activities in relation 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 applicants and Arkema constituted a single undertaking for the purposes of Article 81 EC. The same applies to the argument that Arkema operated on the market in its own name and for its own account, rather than as representative of its parent companies Total and Elf Aquitaine.
72. Nor can any conclusions be drawn from the fact that the applicants never had any customers in common with their subsidiary, that they did not operate on the markets on which their subsidiary was present, or on any related markets, that the activity relating to the products in question represented only a very small share of each applicant’s total turnover and that those products were only some of the very large number of products produced by Arkema’s chemical business.
73. Fourth, as regards the applicants’ argument that there was no information and reporting system between them and Arkema, 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.
74. Fifth, although the applicants point out that Arkema had power to enter into contracts without pr ior authorisation and enjoyed considerable financial autonomy, it must be observed that they also admit that they reviewed their subsidiary’s major industrial investment and acquisition projects and largest financial commitments, and that fact can only strengthen the Commission’s conclusion that the subsidiary was not independent.
75. Sixth, the same applies to the allegation that Arkema defined its legal strategy independently in the case at hand, from the investigation onwards, in which it decided to cooperate without first referring to its parent companies. Indeed, the fact that an undertaking does not present itself as the sole interlocutor both during the administrative procedure and at the stage of contentious proceedings does not allow the conclusion to be drawn that the subsidiary in question is independent of its parent company or companies.
76. Moreover, it must be borne in mind that it is not the parent company’s direct involvement in the infringement committed by its subsidiary but the fact that they constitute a single undertaking which enables the Commission to impute the infringement in question to the parent company. The Commission’s conclusion cannot, therefore, be called into question by the fact that the applicants were not informed by Arkema and only learned about the existence of the cartel in question after the Commission had carried out its investigations at the premises of the subsidiary.
77. Seventh, the argument that Arkema’s independence is demonstrated by the perception that third parties might have of it, in particular in so far as the companies in question shared no common trade mark and in that there was confusion between them in the minds of suppliers, customers and consumers, is unsupported by evidence.
78. Furthermore, the ‘Markets and Businesses’ brochures annexed to the reply to the statement of objections, which were clearly addressed to third parties, describe Arkema as being engaged in the chemical activity or as being the ‘chemical branch’ of the Total and Elf Aquitaine groups. That contradicts the applicants’ argument that Arkema was perceived by third parties as being an entirely separate operator from its parent companies. In any event, third-party perceptions of a company cannot in themselves suffice to prove that a subsidiary is independent of its parent company or companies.
79. Eighth, as regards the applicants’ argument that Arkema’s independence was confirmed by Commission 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 that decision contains no such opinion. The Commission chose not to check whether the infringement should be imputed to an ultimate parent company within the group (see paragraph 212 below).
80. Ninth, as regards the point which the applicants raised for the first time before the Court, namely the fact that Arkema became a separate company, from a capital point of view, from the applicants 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.
81. In light of the foregoing, it must be held that the Commission was right to conclude that the evidence adduced by the applicants, even taken as a whole, was insufficient to rebut the presumption in question.
82. Finally, at the hearing, the applicants stated that, by rejecting the evidence which they had submitted to it, the Commission had transformed the presumption in question into an irrebuttable presumption.
83. It must be observed in this connection that, in recital 374 of the contested decision, the Commission referred to the settled case-law according to which a parent company may rebut the presumption in question by adducing sufficient evidence to demonstrate that its subsidiary acts independently. In the present case, as is clear from the foregoing analysis, the Commission was right to conclude that the evidence adduced by the applicants, even taken as a whole, was insufficient to rebut the presumption. The applicants are therefore wrong to allege that there has been any transformation of a simple presumption into an irrebuttable presumption.
84. The second limb of the present plea must therefore be rejected in its entirety.
The first limb, alleging an error of law in relation to the objective nature of imputability
85. The applicants submit, in substance, that the Commission failed to have regard to the objective nature of the criteria for imputing liability when it insisted upon its margin of discretion in this connection when rejecting their argument based upon the fact that it had not held Arkema’s parent company liable in Decision C(2003) 4570 (recital 434 of the contested decision).
86. It should be observed that, in recital 434 of the contested decision, the Commission stated, in response to the applicants’ argument, that:
‘the fact that ... the Commission addressed [Decision C(2003) 4570] to [Arkema] alone does not prevent the Commission in this case from addressing its decision to both [Arkema] and [the applicants]. The Commission has discretion to impute liability to a parent company in such circumstances and the fact that it has not done so in a previous decision does not prevent it from doing so in this case.’
87. It must be held that, contrary to the applicants’ submission, the Commission did not claim in this case that it enjoyed a ‘margin of discretion in deciding what was the relevant criterion for imputability’ and thus for its ability to hold a parent company liable for infringements committed by another company, in breach of the rules laid down in the case-law. The Commission merely sought by its statement to counter the applicants’ argument based on the fact that Decision C(2003) 4570, which was addressed to Arkema, did not impute Arkema’s conduct to its parent company. Moreover, it is clear from the foregoing that, in order to hold the applicants liable for the infringement at issue, the Commission used a precise method that conformed to the rules laid down in the case-law and, in particular, the concept of an undertaking as defined by competition law.
88. It follows that the applicants’ arguments are ineffective. Indeed, even if, contrary to its assertion, the Commission were always required to impute the unlawful conduct of a subsidiary to its parent company where those two companies form a single undertaking for the purposes of competition law, the fact that it did not do so in earlier decisions would have no bearing on the lawfulness of the contested decision, in which the Commission did indeed impute the subsidiary’s unlawful conduct to the parent company.
89. In any event, it is clear from the case-law 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 Arkema’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.
90. The present limb of the present plea must therefore be rejected.
The third limb, alleging breach of the ‘principle of the economic autonomy of legal persons’
91. The applicants argue that, pursuant to the supposed ‘principle of the economic autonomy of legal persons’, the situation where a parent company and its subsidiary form a single undertaking is an exception, even if the subsidiary’s share capital is wholly controlled. The Commission breached this ‘principle’, they allege, by ‘automatically’ imputing liability to them for the infringement in question.
92. It must be borne in mind 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. It must therefore be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see paragraphs 31 and 32 above).
93. It follows that the fact that a subsidiary has separate legal personality does not preclude the possibility of its constituting a single undertaking with its parent company.
94. It should be recalled that the infringement in question was imputed to the applicants because the presumption of the exercise of a decisive influence on their subsidiary had not been rebutted, the applicants having failed to adduce sufficient evidence of their subsidiary’s independence. Consequently, the applicants are mistaken to regard the method used in the present case as ‘automatic’, since it permitted full account to be taken of the applicants’ particular situation and, in particular, of the links between them and Arkema at the material time.
95. That method was therefore consistent with the concept of an undertaking as defined by competition law, in that it enabled it to be established whether the applicants and Arkema formed a single economic entity. Moreover, as is clear from the foregoing, the fact that the method rests upon a presumption and that it is for the party disputing the presumption to adduce counter-evidence is consistent with the case-law.
96. Furthermore, the applicants have failed to establish the existence of any general principle of law which would preclude the application of such a presumption in the present case. As regards the arguments relating to the rules of civil law and French and American commercial law, and to the decision-making practice of the French competition authority, it must be pointed out that those are not factors by reference to which the lawfulness of Commission decisions in competition cases is to be assessed.
97. Lastly, it is appropriate to emphasise that the presumption in question is merely a mode of proof available to the Commission in its investigations in competition cases and in no way delimits the relationships between parent companies and their subsidiaries or, in particular, the degree of legal or economic independence which a subsidiary may enjoy, in accordance with applicable legislation and the decisions of the companies in question.
98. In light of the foregoing, the third limb of the present plea and, thus, the fourth plea in its entirety must be rejected.
The first plea in law, alleging breach of the rights of the defence
99. The first plea falls into two limbs.
The first limb, alleging that it was impossible for the applicants to defend themselves effectively
100. First of all, the applicants argue that the Commission ought to have been precise in refuting the explanations which they gave in their reply to the statement of objections and ought to have put forward a distinct body of evidence in order to establish their liability. By failing to discharge that burden of proof, the Commission breached the principle of the equality of arms.
101. It must be observed that it is clear from the case-law cited in paragraph 38 above that the burden of rebutting the presumption in question rests upon the parent company, which must adduce sufficient evidence to show that its subsidiary acts independently on the market. Thus, where the Commission finds that the presumption has not been rebutted, it is entitled to impute the infringement to the parent company without, as the applicants maintain, having to put forward a ‘distinct body of evidence’ in order to establish its liability.
102. Having regard to those considerations, the case-law to which the applicants refer by analogy, according to which, in the event that the Commission relies solely on the conduct of undertakings on the market in finding that an infringement has been committed, the undertakings may dispute the infringement by pointing to circumstances which cast the facts established by the Commission in a different light and thus allow another, plausible explanation of the facts to be substituted for the one adopted by the Commission (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission
[2004] ECR II‑2501, paragraphs 186 and 187), is irrelevant because the hypothesis contemplated by that case-law does not apply in the present case.
103. Furthermore, it must be borne in mind that, according to consistent case-law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 10, and Case C‑310/93 P BPB Industries and British Gypsum
v Commission
[1995] ECR I‑865, paragraph 21).
104. 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) provides that the parties are to receive a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. That statement of objections constitutes the procedural safeguard applying the fundamental principle of European Union law which requires observance of the rights of the defence in all proceedings (Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others
v Commission [2009] ECR I‑7191, paragraph 35).
105. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see Papierfabrik August Koehler and Others
v Commission, paragraph 104 above, paragraph 36 and the case-law cited).
106. In particular, the statement of objections must specify unequivocally the legal person on whom fines may be imposed, be addressed to that person and indicate in what capacity that person is called upon to answer the allegations (see, to that effect, Papierfabrik August Koehler and Others v Commission, paragraph 104 above, paragraphs 37 and 38).
107. Thus, since the company against which the presumption in question is raised is able, in its reply to the statement of objections and at the hearing before the hearing officer, to put forward all the elements of fact and law it chooses in order to dispute the presumption, and since the Commission must take those elements into account and, where appropriate, withdraw any complaints which prove to be unfounded, the principle of the equality of arms is observed.
108. In the present case, the applicants do not deny that the statement of objections enabled them to understand that their implication in the present case resulted from the presumption arising from the fact that they controlled almost all of the share capital of Arkema. Since that presumption is rebuttable, they were able, during the administrative procedure, to defend the point and attempt to rebut the presumption. Moreover, that is precisely what they did, as is clear from both the contested decision and the application, albeit without managing to persuade the Commission.
109. The present complaint must therefore be rejected.
110. Second, the applicants maintain that the Commission failed to fulfil its duty to examine carefully and impartially the counter-evidence adduced to rebut the presumption, making it impossible for them to focus their defence on specific factors.
111. It must be observed that the applicants do not specify which particular relevant factors the Commission omitted to examine.
112. If, by the present complaint, the applicants seek to dispute that the Commission examined all the evidence they adduced in order to rebut the presumption in question, then it must be observed that the Commission’s examination of it has been confirmed by the Court’s assessment of the fourth plea set out above.
113. Moreover, as will be clear from the Court’s assessment of the third limb of the second plea, set out below, the fact that the statement of reasons given for the contested decision is succinct on this point does not, in itself, allow the conclusion to be drawn that the duty to examine carefully and impartially the relevant matters arising in the administrative procedure was breached.
114. Indeed, it is evident from a reading of recitals 434 to 441 of the contested decision that the Commission examined the applicants’ arguments, summarised in recital 431, in support of their view that Arkema alone should have been the addressee of the decision and an analysis of the reply to the statement of objections reveals no other relevant factors that the Commission might have overlooked.
115. It follows that the present complaint is unfounded.
116. Third, at the hearing, the applicants maintained that, by omitting to inform them of the investigation before addressing the statement of objections to them, the Commission failed to have regard to the requirements relating to the right to a fair hearing, as recognised by Article 6(3)(a) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which were reconfirmed by Case T‑99/04 AC-Treuhand
v Commission
[2008] ECR II‑1501 and by the Commission’s Best Practices on the conduct of proceedings c oncerning Articles 101 TFEU and 102 TFEU.
117. It must be observed that, in paragraph 56 of its judgment in AC ‑ Treuhand
v Commission, paragraph 116 above, the Court held that, given the principle of the right to a fair hearing, when the first measure is taken in respect of an undertaking, including in requests for information under Article 11 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), the Commission is required to inform the undertaking concerned, inter alia, of the subject-matter and purpose of the investigation. In paragraph 58 of that judgment, the Court also observed that it followed from the case-law that it is only where the irregularity committed by the Commission was capable of actually compromising the rights of defence of the undertaking involved in the administrative procedure that such an irregularity could lead to the annulment of the Commission’s final decision.
118. In the present case, apart from the fact that it cannot be inferred from that judgment that the Commission is required, as the applicants assert, to take measures of investigation with respect to an undertaking before issuing a statement of objections where it considers that it otherwise has information that justifies issuing the statement of objections, it must be held that the applicants have put forward no specific element establishing that it was thereby deprived of the opportunity to adduce evidence that it did not exercise a decisive influence over Arkema.
119. As regards the argument that the Commission breached its ‘Best Practices’ code by not addressing any investigative measure to the applicants before adopting the statement of objections, it must be held that that code, which, in accordance with paragraph 5 thereof, is to apply only to ongoing and future cases at the time of its publication in the Official Journal of the European Union, was adopted after the contested decision and is therefore not applicable to the facts of the present case.
120. Furthermore, it must be observed that paragraph 14 of that code provides, with reference to AC‑Treuhand
v Commission, paragraph 116 above, paragraph 56, that, ‘[a]t the moment of the first investigative measure addressed to them (normally a request for information or an inspection), undertakings are informed of the fact that they are subject to a preliminary investigation as well as about the subject-matter and purpose of such investigation’. Therefore, without there being any need to adjudicate on the legal scope of that code, it must be held, in any event, that it does not indicate that the Commission is required to address investigative measures to all the legal entities constituting the undertaking concerned before adopting the statement of objections.
121. Thus, the present complaint and, consequently, the first limb of the present plea in its entirety must be rejected.
The second limb, alleging breach of the principle of the presumption of innocence
122. The applicants maintain that the Commission breached the principle of the presumption of innocence in that, first, it declared them a priori ‘culpable’ of an infringement on the basis of a mere presumption unsupported by concrete fact and, second, it held them liable even though they had been unable fully to enjoy their rights of defence.
123. It must be borne in mind that the presumption of innocence, as a general principle of European Union law, applies, inter alia, to procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Case C‑199/92 P Hüls
v Commission
[1999] ECR I‑4287, paragraphs 149 and 150).
124. The applicants’ arguments do not permit a finding that the principle was breached in the present case.
125. First of all, it must be recalled that the Commission may, where a parent company holds all or almost all of a subsidiary’s share capital, rely upon the presumption that the parent company exercises a decisive influence upon the subsidiary in order to hold it jointly and severally liable for the payment of the fine imposed on the subsidiary. In such a case, the parent company is regarded as forming a single undertaking with its subsidiary, upon which, according to the principle of personal responsibility, it falls to answer for the infringement. In the present case, Arkema admitted the infringement in the application which it made pursuant to the Leniency Notice (see recital 69 of the contested decision). Moreover, the applicants do not dispute its involvement in the cartel in question.
126. Contrary to the applicants’ submission, it cannot be held that the Commission held them a priori ‘culpable’, since they had the opportunity of rebutting the abovementioned presumption, invoked in the statement of objections, by demonstrating the independence of their subsidiary.
127. It should be borne in mind that the adoption by the Commission of a statement of objections cannot possibly be considered as evidence of the culpability of the undertaking concerned. Otherwise, the opening of any proceedings in this area would potentially be liable to infringe the principle of the presumption of innocence (see, to that effect, Case C‑167/04 P JCB Service
v Commission
[2006] ECR I‑8935, paragraph 99).
128. Moreover, is so far as the applicants maintained at the hearing, in substance, that the presumption of innocence was breached in the present case, by the fact of the ‘concentration within the Commission’s hands of the powers of police, investigator, prosecutor and judge’, it must be observed that that complaint was submitted out of time, since it was formulated for the first time at the hearing stage and since it cannot be regarded as amplifying the present plea as submitted in the application, according to which the Commission breached the principle of the presumption of innocence by invoking against the applicants the presumption arising from the fact that they controlled almost all of the share capital of their subsidiary. This complaint must therefore be rejected as inadmissible, in accordance with Article 48(2) of the Rules of Procedure.
129. In light of the foregoing, the second limb and, thus, the present plea in its entirety must be rejected.
The second plea in law, alleging breach of the duty to state reasons
130. 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).
131. 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).
132. The applicants divide the present plea into three limbs.
The first limb, alleging breach of the duty to state the reasons to a higher standard, which applies in view of the novelty of the position adopted by the Commission
133. The applicants maintain that the contested decision must satisfy a higher standard of reasoning in the present case since the Commission has adopted a novel position by comparison with its prior decision-making practice. They allege that, by simply confirming its interpretation of the case-law on holding parent companies liable for the unlawful conduct of subsidiaries, the Commission failed to satisfy that obligation.
134. It should be recalled that, in recital 434 of the contested decision, the Commission stated, in response to the applicants’ arguments, that:
‘the fact that ... the Commission addressed [Decision C(2003) 4570] to [Arkema] alone does not prevent the Commission in this case from addressing its decision to both [Arkema] and [the applicants]. The Commission has discretion to impute liability to a parent company in such circumstances and the fact that it has not done so in a previous decision does not prevent it from doing so in this case.’
135. It must be held that that passage is in no way an admission that the Commission adopted in the present case a radically new and substantially different position from its prior practice, as the applicants claim.
136. Moreover, it must be pointed out 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 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, Hoechs AG, Clariant GmbH, Clariant AG (Case E‑1/37.773 – MCAA), in which it imputed the infringement committed by Arkema to Elf Aquitaine. The applicants cannot therefore maintain that the Commission has adopted a radically new position with regard to them in this case. Furthermore, it is clear from the contested decision that, during the administrative procedure, the applicants maintained that it was indeed Decision C(2004) 4876 that marked an ‘audacious change’ in the Commission’s decision-making practice and asked the Commission to wait for the outcome of the legal proceedings which they had initiated to challenge the decision (see recitals 430 and 433 of the contested decision).
137. In any event, the case-law to which the applicants refer merely requires the Commission to give an account of its reasoning where, in the context of its decision-making practice, it adopts a decision which goes appreciably further than previous decisions. It is not sufficient, therefore, in such a case, for it to give a summary statement of reasons, for example, by reference to a well-established line of decisions (see, to that effect, Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others
v Commission
[1975] ECR 1491, paragraph 3).
138. However, in the contested decision, the Commission 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 applicants (recitals 427 to 441). The statement of reasons for the contested decision, in so far as concerns the reasons for which the Commission decided to impute the unlawful conduct to the applicants, therefore satisfies the requirements laid down by the case-law cited in paragraph 137 above.
139. The first limb of the plea cannot therefore succeed.
The second limb, alleging a contradiction in the statement of reasons
140. The applicants maintain that the reasons set out in recitals 370 to 372, 435 to 442 and 458 to 529 of the contested decision are contradictory in that the Commission confused two concepts, namely the concept of an undertaking, for the purposes of Article 81 EC, being the economic entity which is liable for an infringement and is to be fined, on the one hand, and the legal entity which is the addressee of the decision on the other.
141. As regards, first of all, the terminology used by the Commission in the contested decision, without it being necessary to examine each of the recitals thereof to which the applicants refer, it must be observed that it is unambiguously clear from recital 441 of the contested decision that it was on the basis of the finding that the applicants and Arkema formed a single undertaking for the purposes of Article 81 EC that it decided to hold them liable for the infringement at issue and impose fines upon them. That conclusion is not undermined by the fact that the text of the contested decision is occasionally inconsistent and employs the term ‘undertaking’ to refer to one or other of the companies within the group in question (see, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission, not published in the ECR, paragraph 62).
142. Next, as regards the fact that the Commission on the one hand asserts in the contested decision that the various companies within the Total group constitute a single undertaking, the undertaking which committed the infringement in question, and, on the other, identifies each of those companies as an addressee of the contested decision upon which the fine is imposed, it must be pointed out that that is simply a consequence of the fact that the addressees of the competition rules and the addressees of decisions by the competition authorities are not necessarily the same.
143. Specifically, whereas the competition rules are directed to undertakings and apply to them directly regardless of their legal nature, amongst other things, infringements of the competition law of the European Union must be imputed unequivocally to a legal person on whom fines may be imposed (see, to that effect, Akzo Nobel and Others
v Commission, paragraph 31 above, paragraphs 54 to 57, and Opinion of Advocate General Kokott in Case C‑280/06 ETI and Others
[2007] ECR I‑10893, I‑10896, points 68 and 69).
144. As regards the identification of the various companies within the Total group in the grounds of the contested decision which deal with the calculation of the fine, suffice it to observe that the contested decision discloses in a clear and unequivocal fashion the reasoning followed by the Commission in order to determine the amount of the fine as well as the amounts for which the applicants are held liable for payment.
145. Lastly, in so far as the applicants allege a fundamental flaw inasmuch as the calculation of a different, specific fine for each of the companies concerned is incompatible with the concept of a single undertaking, it is appropriate to refer to the analysis of the third plea, set out below.
146. Consequently, the second limb of the plea must be rejected.
The third limb, alleging a failure on the Commission’s part to reply to the arguments rebutting the presumption of the exercise of a decisive influence
147. The applicants argue that the Commission gave insufficient reasons for its rejection of the points raised during the administrative procedure in an attempt to rebut the presumption arising from the fact that they control almost all of the share capital of Arkema.
148. In so far as concerns the Commission’s duty to state reasons, it is appropriate to refer to the case-law cited in paragraphs 130 and 131 above. It must be borne in mind, in particular, that in order to contain an adequate statement of reasons in regard to the applicants, the contested decision had to contain a detailed statement of reasons for attributing the infringement to them (see, to that effect, SCA Holding
v Commission, paragraph 131 above, paragraph 80).
149. 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.
150. 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 applicants during the administrative procedure.
151. Indeed, after describing, in recitals 430 to 432 of the contested decision, the arguments put forward by the applicants in their reply 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 principle of the presumption of innocence and the principle of the equality of arms.
152. In addition, in recitals 433 to 441 of the contested decision, the Commission held that the presumption arising from the fact that the applicants held almost all of Arkema’s share capital had not been rebutted and that the conclusion that they were liable for the infringement had to be maintained, on the basis of that presumption.
153. The Court considers that, by those reasons, the Commission replied to the essential points of the applicants’ arguments. 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 130 above, paragraph 64), it cannot be criticised for not replying specifically to each argument relied on by the applicants.
154. 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 applicants relied consisted substantially in mere assertions and were not supported by concrete evidence of the links between the companies concerned during the period of the infringement.
155. Furthermore, in so far as the applicants call into question the merits of the Commission’s assessment which led it to reject the evidence in question, their arguments go to the substantive legality of the contested decision, which was examined above in the context of the fourth plea.
156. In light of the foregoing, the third limb of the present plea must be rejected, as must the second plea in its entirety.
The third plea in law, alleging breach of the unitary nature of the concept of an undertaking
157. The applicants argue that the Commission breached the unitary nature of the concept of an undertaking in that its references to the concept of an ‘undertaking’ in the various stages of its calculation of the amount of the fines lacked coherence. In their view, that calculation should have been consistent with regard to the economic unit concerned, and the division of liability for the payment of the fine as between the various legal entities comprising the undertaking should have been taken as a separate step in the reasoning.
158. It must be pointed out that this argument, which relates exclusively to the method applied by the Commission in order to calculate the amount of the fines and to distribute liability for their payment among the various companies of the group, is incapable of calling into question the legality of the assessment which led the Commission to holding the applicants liable for the infringement.
159. In so far as the applicants’ argument may be understood as calling into question the amount of the fine or the calculation of the share of liability of each company within the group for its payment, it must be observed that the applicants do not dispute the actual results of the calculation carried out by the Commission. In particular, they do not allege that a different method would have resulted in their being held liable for the payment of a smaller part of the fine.
160. In any event, it must be held that the Commission’s approach was not inconsistent with the concept of an undertaking.
161. It must be observed in this connection that the applicants are quite right in pointing out that, under Articles 81 EC and 82 EC, it is undertakings and associations of undertakings that may be held liable for infringement of the competition rules. Furthermore, under Article 23(2) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings and associations of undertakings where, inter alia, they infringe Article 81 EC or Article 82 EC.
162. It must also be borne in mind 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. In particular, 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, to that effect, Akzo Nobel and Others v Commission, paragraph 31 above, paragraphs 54 and 55 and the case‑law cited.
163. When such an entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement ( ETI and Others, paragraph 143 above, paragraph 39 and the case-law cited). Nevertheless, the infringement of the competition law of the European Union must be imputed unequivocally to a legal person on whom fines may be imposed ( Papierfabrik August Koehler and Others
v Commission, paragraph 104 above, paragraph 38, and Akzo Nobel and Others v Commission, paragraph 31 above, paragraph 57). Consequently, when such an infringement is found to have been committed, it is necessary to identify the natural or legal person who was responsible for the operation of the undertaking at the time when the infringement was committed, so that it can answer for it (Case T‑6/89 Enichem Anic
v Commission
[1991] ECR II‑1623, paragraph 236; see also, to that effect, Case C‑279/98 P Cascades
v Commission
[2000] ECR I‑9693, paragraph 78).
164. Moreover, the Court of Justice has already held that the Commission’s practice of holding a company jointly and severally liable for the payment of part of a fine imposed on another company where the anti-competitive conduct of the latter could be attributed to it is consistent with Article 15(2) of Regulation No 17 (replaced by Article 23(2) of Regulation No 1/2003). In such a case, the company in question receives a fine for an infringement which it itself is deemed to have committed, by reason of that imputation (Case C‑294/98 P Metsä-Serla and Others
v Commission
[2000] ECR I‑10065, paragraphs 26 to 28).
165. Therefore, the fact that the contested decision identifies various legal persons who must be held jointly and severally liable for the payment of the fine is not inconsistent with the concept of an undertaking. On the contrary, it is a precise application of that concept, given that it has been established that the undertaking in question, in law, consists of several persons, natural or legal.
166. Equally, no misinterpretation of the concept of an undertaking may be alleged solely because those different legal persons are liable for the payment of different amounts of the fine. Indeed, the finding that several legal persons constitute a single undertaking responsible for the commission of an infringement does not necessarily imply that all the relevant factors in the calculation of the fine may be ascribed to each of them in the same manner, especially where the composition, in law, of the undertaking in question has changed over time. In the present case, Total has been held liable only in respect of part of the period of the infringement (recital 441 of the contested decision) and neither of the applicants has been regarded as having repeated an infringement (recital 469 of the contested decision).
167. It is appropriate to recall in this connection that, in Cascades
v Commission, paragraph 163 above, the Court of Justice held that the approach of imputing to a parent company the unlawful activity of its subsidiaries prior to their acquisition by the parent company was wrong. The Court stated that it fell, 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. After emphasising that the companies in question had not been purely and simply absorbed by the purchaser but had continued their activities as its subsidiaries, the Court held they must, therefore, answer themselves for their unlawful activity prior to their acquisition by the parent company, which could not be held responsible for it (paragraphs 77 to 80 of the judgment).
168. Thus, since Total had acquired control over Elf Aquitaine’s share capital in April 2000, the Commission was right to hold it responsible for the infringement in question only from 30 April 2000 onwards (recital 441 of the contested decision) and not to increase the starting amount of the fine imposed upon it on account of duration (recitals 467 and 468 of the contested decision).
169. In light of the foregoing, the applicants cannot validly criticise the Commission for having identified various companies within the Total group in the grounds dealing with the calculation of the fine.
170. Lastly, it should be emphasised that, leaving aside the increases on account of the duration of the infringement and repeated infringement, in the calculation of which the Commission took account of the changes over time in the composition of the undertaking in question, the fine was calculated in the same way for all the companies within the Total group. In particular, the Commission applied the same starting amount of the fine to all of them and the same reduction under the Leniency Notice. The applicants’ criticisms concerning the two stages of the calculation of the fine are thus unfounded.
171. The third plea must therefore be rejected.
The fifth plea in law, alleging errors of assessment concerning Total
172. The applicants make two complaints by which they dispute Total’s liability alone. First of all, they allege that, since it took control of the group in April 2000, Total could not have given Arkema ‘cartel instructions’ in connection with a cartel that had been in existence for years and for which the last multilateral meeting was held on 18 May 2000. They state that the duration of the infringement attributable to Total is at most eight months, even though, in reality, its infringement lasted only one month, since the last multilateral cartel meeting took place on 18 May 2000.
173. First of all, it must be observed that the applicants’ allegation that the period of the infringement attributable to Total is no more than one month rests upon the premiss that it put an end to the cartel on the date of that last multilateral meeting, 18 May 2000.
174. However, the applicants develop no argument to support that view and, in particular, do not call into question in any reasoned fashion the Commission’s finding that the meeting of 18 May 2000 had led to a general consensus on maintaining price levels and, therefore, that the cartel had continued to produce effects until 31 December 2000 (recitals 357 to 360 of the contested decision).
175. Next, it must be borne in mind that Total’s liability rests upon the fact that, from 30 April 2000 onwards, when it purchased the group, together with Arkema and Elf Aquitaine, it formed part of the same undertaking that was responsible for the infringement in question (recital 441 of the contested decision).
176. It must be pointed out in this connection that the mere fact that Total acquired control over the group only during the final phase of the infringement does not preclude its having exercised a decisive influence over the conduct on the market of its subsidiary involved in the infringement.
177. Indeed, other than the date on which Total acquired control over the group, the applicants put forward no particular fact capable of demonstrating that, between May and December 2000, Arkema decided upon its own conduct on the market independently of Total.
178. That being so, the Commission was entitled to presume that, having acquired control of almost all of the group’s share capital on 30 April 2000, Total had exercised a decisive influence over Arkema’s conduct on the market, and thus to hold it liable for the infringement for the period in question, on the basis of that presumption, which was not rebutted.
179. Moreover, the Court must dismiss as ineffective the applicants’ argument that, given the date on which it acquired control over the group, Total had not been in a position to inform itself about the offending practices of its subsidiary and to take steps to put an end to them.
180. As is clear from the foregoing considerations, Total’s liability arises from the fact that it is one of the legal entities comprising the undertaking which infringed competition law, irrespective of whether or not it was aware of the infringement.
181. The first complaint cannot therefore be upheld.
182. Second, the applicants argue that the Commission was mistaken in stating, in recital 471 of the contested decision, that the addressees of Decisions 85/74and
94/599, of whom account was taken under the heading of repeated infringement, had belonged to the Total group when those earlier decisions were adopted.
183. It must be observed that the Commission was, as it itself admitted in its defence, mistaken to state, in recital 471 of the contested decision that ‘the legal entities which were addressees of ... [Decisions 85/74 and 94/599] were and still are part of the Total group’.
184. Nevertheless, that statement has no bearing upon the lawfulness of the contested decision. First, it is clear from recital 441 of the contested decision that Total was held liable for the infringement only from the date on which it acquired control over the group, that is to say, 30 April 2000.
185. Second, as is clear from recital 469 of the contested decision, the Commission did take account of the fact that Arkema was not part of the Total group at the time of the earlier adverse findings, when it applied the increase on account of repeated infringement solely to the fine imposed on Arkema.
186. In light of the foregoing, the second complaint and, thus, the fifth plea in its entirety must be rejected.
The sixth plea in law, alleging breach of several essential principles recognised by all the Member States and which form an integral part of the legal order of the European Union
187. The applicants submit that, by holding them liable for the infringement in question and imposing the fine on them, the Commission has breached the principle of equal treatment, the principle of personal responsibility, the principle that penalties should be specific to the offender and the offence, and the principle that penalties must have a proper legal basis.
The alleged breach of the principle of equal treatment
188. The applicants maintain that the Commission breached the principle of equal treatment by holding them liable solely on the basis of the presumption in question while it held the other companies to which the contested decision was addressed liable on the basis of the presumption supported by other additional elements (recitals 385, 391, 394, 405, 411 and 423 to 427 of the contested decision).
189. 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 was in fact applied both to the Total group and to the other groups of companies concerned by the contested decision.
190. 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.
191. 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.
192. 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.
193. 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’.
194. 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 applicants.
195. 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.
196. It is thus clear from the recitals of the contested decision to which the applicants refer 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.
197. Furthermore, in so far as the applicants are concerned, in addition to the links of a capital nature, the Commission also mentioned the fact that the members of the board of Arkema 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.
198. The present complaint is therefore unfounded.
The alleged breach of the principle of personal responsibility, the principle that penalties should be specific to the offender and the offence, and the principle that penalties must have a proper legal basis
199. The applicants maintain, in substance, that the Commission breached the principles of law referred to by failing to recognise that Arkema was a separate economic entity from them and by consequently wrongly holding them liable and imposing fines on them.
200. It must be recalled that, given the nature of the infringements at issue and the nature and degree of severity of the ensuing penalties, liability for those infringements is personal in nature (Case C‑49/92 P Commission
v Anic Partecipazioni [1999] ECR I‑4125, paragraph 78). Furthermore, according to the principle that penalties must be specific to the offender and the offence, a natural or legal person may be penalised only for acts imputed to him individually (Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni
v Commission
[2001] ECR II‑3757, paragraph 63); that principle applies in any administrative procedure that may lead to the imposition of sanctions under European Union competition law (Case T‑304/02 Hoek Loos
v Commission
[2006] ECR II‑1887, paragraph 118).
201. In the present case, it is sufficient to observe that the applicants’ arguments rest upon the mistaken premiss that there was no finding of infringement against them and that no fine was imposed upon them personally. On the contrary, it is clear from the foregoing that the applicants were held individually liable for an infringement of Article 81 EC which they are deemed to have committed themselves on account of the economic, organisational and legal links between them and their subsidiaries and the fact that those subsidiaries did not act independently on the market (see, to that effect, Metsä-Serla and Others
v Commission, paragraph 164 above, paragraphs 27 and 34).
202. Moreover, contrary to the applicants’ submissions, it is clear from the Court’s examination of the fourth plea above that it has been proven that they committed an infringement of Article 81 EC. The sanctions for such an infringement are clearly provided for in Article 23(2) of Regulation No 1/2003. Consequently, the principle that penalties must have a proper legal basis has been observed.
203. The present complaint and the sixth plea in its entirety must therefore be rejected.
The seventh plea in law, alleging breach of the principle of sound administration
204. First of all, the applicants maintain that the Commission failed to examine carefully and impartially the matters put forward to demonstrate Arkema’s independence.
205. Given that they do no more than reiterate their argument alleging a failure to examine the relevant matters, examined and rejected in paragraphs 111 to 115 above, the present argument must be rejected for the same reasons.
206. Second, the applicants argue that the Commission ought, in the interests of procedural economy, to have acceded to their request that it postpone its adoption of the contested decision until the General Court has given its ruling on the action brought against Decision C(2004) 4876.
207. However, given that this argument relates solely to procedural economy and is thus manifestly incapable of calling into question the legality of the contested decision, it must be immediately rejected.
208. The seventh plea must therefore be rejected.
The eighth plea in law, alleging breach of the principle of legal certainty
209. The applicants maintain that the novelty of the criterion of imputability applied in the present case, by comparison with the Commission’s prior decision-making practice, in particular in Decision C(2003) 4570, has led to a breach of the principle of legal certainty.
210. It is sufficient to point out that the contested decision is not the first decision in which the Commission imputed liability for an infringement committed by Arkema to its parent company on the basis of the presumption of the exercise of a decisive influence. Indeed, in Decision C(2004) 4876, the Commission had already imputed such liability to Elf Aquitaine. Consequently, contrary to the applicants’ suggestion, the contested decision does not constitute a departure from the Commission’s decision-making practice when imputing liability, including its past practice with regard to the group in question. Furthermore, in their reply to the statement of objections in this case, the applicants had already referred to the criteria of imputability applied by the Commission in Decision C(2004) 4876, as is clear moreover from the arguments which they put forward in the context of the sixth plea. Consequently, the premiss upon which the present plea rests, namely that the Commission applied a new criterion of imputability with regard to the applicants, is, in this case, mistaken.
211. In any event, it must be recalled that the Commission is not required always to consider imputing the unlawful conduct of a subsidiary to its parent company (see paragraph 89 above). Thus, if it decides to impute liability for an established infringement to an undertaking comprising a parent company and a subsidiary, whilst, in its prior practice, it has not contemplated doing so, that does not constitute a breach of the principle of legal certainty.
212. Furthermore, it must be observed that it is clear from Decision C(2003) 4570 (recitals 373 to 391), to which the applicants refer, that the Commission did not analyse the question of the liability of Arkema’s parent company at all and, in particular, expressed no position on the question of its independence from its parent company. Even supposing that the facts of that case were similar to the facts of the present case, it cannot be maintained that that decision constitutes any sort of assurance of the Commission’s perception of the relationship between Arkema and its parent companies, or of the criterion of imputability applicable to that group of companies.
213. Consequently, the present plea cannot be upheld.
The ninth plea in law, alleging breach of the fundamental principles governing the setting of fines
214. The applicants dispute the amount of the fine imposed upon them on a number of grounds.
215. First of all, they maintain that they ought to have benefited from a reduction in the amount of the fine on the ground that they were unaware of the infringement committed by their subsidiary. Referring to the principle of equal treatment, they point out that the Commission granted a reduction for this reason to another addressee of the contested decision, Caffaro.
216. It must be observed that the Commission granted a reduction in the starting amount of the fine to the undertaking comprising the companies SNIA and Caffaro since it had not been established that the latter, having attended only a limited number of cartel meetings relating solely to one of the products in question, had been aware or must have been aware of the overall scheme of anti-competitive arrangements (recitals 332 and 461 of the contested decision).
217. In so far as the applicants are concerned, it must be recalled that the infringement in question was imputed to them because they constituted a single undertaking with their subsidiary, not because they were directly involved in the infringement, and the fact that they were unaware of the cartel is irrelevant to that imputation.
218. Since the applicants do not maintain that their subsidiary, which was directly involved in the infringement, was unaware of the overall scheme of the anti-competitive arrangements, the fact that they were unaware of the cartel does not indicate that the severity of the infringement committed by the undertaking which they comprised together with their subsidiary was any the less and cannot, therefore, constitute grounds for a reduction in the amount of the fine.
219. As regards the alleged breach of the principle of equal treatment, it must be pointed out that the applicants, as the legal entities responsible for operating the undertaking which sold the two products in question and which was directly involved in all aspects of the cartel, are not in a comparable situation to that of Caffaro, which operated the undertaking whose involvement in the cartel did not extend to every aspect of the overall anti-competitive scheme.
220. The present complaint must therefore be rejected.
221. Second, the applicants allege breach of the principles of the presumption of innocence and of legal certainty in connection with the increase in the amount of the fine on account of deterrent effect.
222. First of all, their argument alleging breach of the presumption of innocence rests upon the premiss that ‘there was no evidence … to support the finding that [they were] responsible for the cartel’. However, since it is clear from the Court’s examination of the fourth plea above that the finding of liability against them was correct, the present argument must be rejected.
223. Second, the applicants submit, with reference to recital 465 of the contested decision, that, by stating that, through the creation of a legally separate subsidiary, a parent company could seek to engage that subsidiary in unlawful conduct and yet escape fines, the Commission breached the principle of the presumption of innocence.
224. In recital 465 of the contested decision, the Commission stated, in response to the applicants’ criticism of the increase of the fine in question, that, ‘if [it] were to decide, on the basis of this argument, that a lower fine should be imposed on Atofina than [was] justified by the size of the undertaking of which it [was] part, a very large undertaking involved in one or several cartels could escape from high fines by creating small subsidiaries with little turnover to engage them in illegal behaviour’.
225. As is clear from that recital, by applying the increase in the amount of the fine in question, the Commission took the view, essentially, that that increase took account of the effective economic capacity of the group of legal entities comprising the single undertaking in question, so that the amount of the fine could be set at a sufficiently dissuasive level.
226. That general view can in no way be considered a breach of the principle of the presumption of innocence with regard to the applicants.
227. Third, the applicants allege breach of the principle of legal certainty, reiterating their argument, summarised in the context of the eighth plea, alleging a departure from the Commission’s decision-making practice. That complaint must therefore be rejected for the reasons set out in paragraphs 210 to 212 above.
228. Fourth, the applicants dispute the legality of the increase in the amount of the fine on account of deterrent effect, arguing that no such increase is provided for in Article 23 of Regulation No 1/2003 or in the Guidelines.
229. 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 ( Musique Diffusion française and Others
v Commission, paragraph 103 above, 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).
230. Thus, in the present case, the Commission was legally entitled to increase the starting amount of the fine in question, given the size of the undertaking operated by the applicants, as evidenced by their particularly high worldwide turnover (recital 463 of the contested decision).
231. The complaints directed against the increase in the amount of the fine on account of dissuasive effect are therefore unfounded.
232. Third, the applicants submitted at the hearing that the ceiling of 10% of turnover, laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003, is unlawful in light of the principles of legality and legal certainty in that it refers to the undertaking’s turnover in the business year preceding the adoption of the contested decision, rather than that relating to the period during which the infringement was committed.
233. It must be observed that this complaint was submitted out of time, since it was formulated for the first time at the hearing stage and since it cannot be regarded as amplifying the present plea as submitted in the application, by which, first, the applicants claim a reduction in the amount of the fine on the ground that they were unaware of the infringement and by which, second, they criticise the increase in the amount of the fine on account of deterrent effect.
234. The complaint must therefore be rejected as inadmissible, in accordance with Article 48(2) of the Rules of Procedure.
235. It is, in any event, ineffective in that the applicants do not state what effect, if any, the reference to a business year falling within the period of the infringement might have had as regards the application in the present case of the rule in the second subparagraph of Article 23(2) of Regulation No 1/2003, of which they challenge the legality.
236. In light of those considerations, the present plea is unfounded.
The tenth plea in law, alleging misuse of powers
237. The applicants maintain that the Commission misused its powers in that, in holding them liable for the infringement, it was not seeking to punish the undertaking responsible but to increase the amount of the fine which it imposed, by taking account of their significant size.
238. It has consistently been held that a decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for the purpose of achieving ends other than those stated (see Joined Cases T‑133/95 and T‑204/95 IECC v Commission
[1998] ECR II‑3645, paragraph 188 and the case-law cited).
239. It must also be recalled that, under Article 23(2) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings where they infringe Article 81 EC. It has been established that the sanctions laid down in Article 23 of Regulation No 1/2003 are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other economic operators from infringing the rules of European Union competition law in the future (see, to that effect, Case C‑289/04 P Showa Denko
v Commission
[2006] ECR I‑5859, paragraph 16).
240. Given that the applicants and Arkema formed an undertaking for the purposes of Article 81 EC and that that undertaking participated in the infringement in question, the fine which was imposed on them was in no way deflected from its purpose, even in so far as, in deciding upon that fine, the Commission was pursuing an objective of deterrence.
241. The tenth plea must therefore be rejected.
The eleventh plea in law, put forward in the alternative, seeking a reduction in the amount of the fine to an appropriate level
242. By their eleventh plea, the applicants seek a reduction in the amount of the fine to an appropriate level, on two grounds.
243. First, they submit that, given that they were unaware of the infringement, the starting amount of their fine should be reduced by 25%, like the reduction granted in recital 461 of the contested decision.
244. It must be pointed out in this connection that the situation referred to in recital 461 of the contested decision is not comparable to that of the applicants (see paragraph 219 above). The Court consequently takes the view that the applicants are not entitled to a reduction on this ground.
245. Second, the applicants claim the benefit of a mitigating circumstance, referring to the fact that they have been ordered to pay large fines for their involvement in other cartels during the same period as that to which the contested decision relates, by Decision C(2004) 4876 and Decision C(2006) 2098 of 31 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates).
246. It must be pointed out in this connection that, since the Commission found that the applicants had committed three separate infringements of Article 81(1) EC, it was open to it to impose on them three separate fines, each within the limits set out in Article 23(2) of Regulation No 1/2003 (see, to that effect, Case T‑73/04 Carbone‑Lorraine v Commission
[2008] ECR II‑2661, paragraph 56). Each of those fines necessarily had to reflect the Commission’s assessment of the duration and gravity of the infringement to w hich it related. However, it must be observed that the imposition of a fine upon the applicants for various anti-competitive activities relating to other products in no way alters the reality of the infringement in question in this case (see, to that effect, Joined Cases T‑101/05 and T‑111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraph 52).
247. Consequently, having regard to the objective of deterrence pursued by the fines, the mere fact that the applicants have recently been ordered to pay two other fines, for infringements that were partially similar, cannot justify a reduction in the amount of the fine imposed in the present case.
248. The applicants have not referred to any other matters capable of showing that the imposition of the fine in the present case, combined with the other recent fines, has placed them in a particularly difficult financial position such as might, exceptionally, be taken into account in determining the amount of their fine.
249. Lastly, as regards the applicants’ reference to Decision 94/599, in which, in determining the amount of the fines relating to the cartel addressed by that decision, the Commission took into account the fact that the majority of the undertakings had already been the subject of substantial fines for their participation in another cartel on a neighbouring market, during practically the same period (recital 52 of Decision 94/599), it must be emphasised, first, that Decision 94/599 pre-dates the Guidelines which apply in the present case and, second, that the situation considered in that decision was in some respects different from that in the present case. Indeed, in the present case, first, the infringements on the HP and PBS markets have been addressed by the Commission only in the contested decision and, second, the applicants have alleged no link between those markets and those addressed in the other recent findings against them.
250. Consequently, since none of the matters put forward in the present case is such as to justify a reduction in the amount of the fine, the request, made in the alternative, for the amount of the fine imposed on the applicants to be adjusted cannot be upheld.
251. It follows from all the foregoing that the application must be dismissed in its entirety.
Costs
252. 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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Sixth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders Total SA and Elf Aquitaine SA to pay the costs.