JUDGMENT OF THE GENERAL COURT (Third Chamber)
12 December 2012 (*)
(Competition – Agreements, decisions and concerted practices – Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Imputability of the unlawful conduct – Fines – Ceiling of 10% of turnover – Relevant turnover – Rights of the defence – Obligation to state reasons – Proportionality – 2006 Guidelines on the method of setting fines – Ability to pay)
In Case T‑392/09,
1. garantovaná a.s., established in Bratislava (Slovakia), represented initially by M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers, and subsequently by M. Powell, G. Forwood, M. Staroň and P. Hodál, lawyers,
applicant,
v
European Commission, represented by J. Bourke, N. von Lingen and A. Tokár, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant by that decision,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 25 April 2012,
gives the following
Judgment
Background to the dispute
1        By Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’), the Commission of the European Communities found that the main suppliers of calcium carbide and magnesium for the steel and gas industries had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a single and continuous infringement from 7 April 2004 until 16 January 2007. That infringement consisted of market-sharing, quota-fixing, customer-allocation, price-fixing and the exchange of sensitive commercial information relating to prices, customers and sales volumes in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom.
2        The procedure was initiated following an application for immunity, within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), submitted by Akzo Nobel NV.
3        Novácke chemické závody, a.s. (‘NCHZ’), established in Novaky (Slovakia), produces, inter alia, calcium carbide. During the period of the infringement, more than 70% of NCHZ was owned, directly or indirectly, by the applicant, 1. garantovaná a.s.
4        In Article 1(e) of the contested decision, the Commission found that NCHZ and the applicant had participated in the infringement throughout its duration. Furthermore, in subparagraph (e) of the first paragraph of Article 2 of that decision, the Commission imposed on the applicant and NCHZ, jointly and severally, a fine of EUR 19.6 million.
5        For the reasons set out in recitals 221 to 225 to the contested decision, the Commission took the view that, during the period of the infringement, the applicant exercised decisive influence over NCHZ’s business policy and that therefore the applicant could be held liable for NCHZ’s illegal conduct.
6        In recitals 333 and 334 to the contested decision, the Commission set out the reasons why it had decided to use the applicant’s turnover for 2007 instead of that for 2008 in order to determine the ceiling of 10% of turnover provided for in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).
7        Lastly, in recital 376 to the contested decision, the Commission set out the reasons why it had decided to reject the applicant’s request for account to be taken of its inability to pay, as provided for in point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines’).
Procedure and forms of order sought
8        By application lodged at the Court Registry on 2 October 2009, the applicant brought the present action.
9        By order of 2 March 2011 in Case T‑392/09 R 1. garantovaná v Commission, not published in the ECR, the President of the General Court, following the applicant’s request, suspended the obligation on the applicant to provide the Commission with a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of the contested decision.
10      Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, requested (i) the Commission to produce a document; and (ii) the applicant to answer two questions. The parties complied with those requests within the prescribed period.
11      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 25 April 2012.
12      The applicant claims that the Court should:
–        annul the contested decision, in whole or in part, in so far as it relates to the applicant;
–        in the alternative, reduce the amount of the fine imposed on it;
–        order the Commission to pay the costs.
13      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
14      In support of its action, the applicant relies on six pleas in law, alleging, first, an error of law and of fact in that NCHZ’s participation in the infringement at issue was imputed to the applicant; secondly, an error of law in that the Commission used the applicant’s 2007 turnover instead of its 2008 turnover to establish the 10% turnover ceiling provided for in Article 23(2) of Regulation No 1/2003; thirdly, infringement of its right to be heard as regards the question of the turnover to be taken into account in calculating the ceiling of the fine; fourthly, infringement of the obligation to state reasons in relation to the same question; fifthly, breach of the principle of proportionality given the disproportionate nature of the fine that was imposed on it; and, sixthly, a failure to state reasons or to state adequate reasons and infringement of the Guidelines, in that the Commission refused to take account of the applicant’s inability to pay in determining the amount of the fine.
The first plea in law, alleging an error of law and of fact in the imputation to the applicant of NCHZ’s participation in the infringement at issue
15      As a preliminary point, it must be noted that the Commission declared at the hearing that it was withdrawing its objection to the admissibility of the first plea, as contained in its defence and based on the fact that the applicant had not raised the question of its liability, as NCHZ’s parent company, for the infringement at issue in its reply to the statement of objections. Indeed, the aspect on which the Commission relied does not mean that the present plea is inadmissible (see, to that effect, Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6371, paragraphs 89 to 91).
16      As to the substance, it must be noted that, according to settled case-law, 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‑90/09 P General Química and Others v Commission [2011] ECR I‑1, paragraph 34 and the case-law cited).
17      The Court has also stated that, in the same context, the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see General Química and Others v Commission, cited in paragraph 16 above, paragraph 35 and the case-law cited).
18      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 General Química and Others v Commission, cited in paragraph 16 above, paragraph 36 and the case-law cited). However, as the Court has also stated, the infringement of competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 57).
19      As regards the question whether, in those circumstances, a legal person who is not the perpetrator of the infringement may none the less be penalised, it is apparent from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular when, 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 which tie those two legal entities (see General Química and Others v Commission, cited in paragraph 16 above, paragraph 37 and the case-law cited).
20      In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see General Química and Others v Commission, cited in paragraph 16 above, paragraph 38 and the case-law cited).
21      The Court has also stated in that regard 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, the parent company can exercise decisive influence over the conduct of the subsidiary and, moreover, there is a rebuttable presumption that the parent company does in fact exercise such decisive influence. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises 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 General Química and Others v Commission, cited in paragraph 16 above, paragraphs 39 and 40 and the case-law cited).
22      In its application, the applicant maintained, inter alia, that the Commission had incorrectly applied to it the presumption mentioned in the preceding paragraph even though the applicant was only NCHZ’s majority shareholder and did not wholly own that company. However it admitted at the hearing that that assertion was incorrect and that the presumption had not in fact been applied in its case. Formal notice of that statement was taken in the minutes of the hearing.
23      It must be noted that the contested decision does indeed contain a reminder of the relevant case-law (also recalled in paragraphs 16 to 21 above) in a section VI.1.1 entitled ‘Principles’ (recitals 205 to 207), and that, in that context, the Commission recalls in recital 206 to the contested decision the case-law relating to the presumption applicable to wholly-owned subsidiaries. However, that reminder was clearly included in regard to certain other cartel participants, wholly-owned by other addressees of the contested decision (see, for example, recitals 209, 216 and 227). As regards the applicant, however, the Commission set out in recitals 221 to 225 to the contested decision the elements of fact and the evidence which, in its view, meant that the applicant could be held liable for the infringement committed by its subsidiary, NCHZ, without recourse to any presumption in the applicant’s case.
24      It is necessary, therefore, to examine the applicant’s arguments that the evidence referred to above is insufficient to justify the imputation to the applicant of liability for the anti-competitive conduct of NCHZ. It must be noted in that regard that, at the hearing, the applicant explained, in view of the somewhat ambiguous terminology in that part of the application, that the present plea was intended to challenge the substance of the reasons given in recitals 221 to 225 to the contested decision and not the very existence of such reasons. Formal notice of that statement was taken in the minutes of the hearing.
25      It will be recalled that, in recital 221 to the contested decision, the Commission stated as follows:
‘In [the infringement period, the applicant] exercised decisive influence over the business policy of NCHZ, and [those two companies] therefore constituted a single undertaking. This is demonstrated by the following structural and organisational links:
–        [t]he General Assembly of NCHZ, which decides by a majority of 70% of the votes…, elects the Board of Directors. This Board has five members and decides by simple majority... Its chairman was at the same time the vice‑chairman of the Board of Directors of [the applicant] and its vice‑chairman was [at] the same time the chairman of the Board of Directors of [the applicant]. In the period from 2004 to 2007 there were 11 different members serving the Board, 9 out of which held functions in the [applicant’s group;]
–        [t]he vast majority of the supervisory board of NCHZ consisted of representatives of [the applicant;]
–        [t]he turnover of NCHZ was consolidated with [the applicant] demonstrating that the income generated by the subsidiary contributed to the economic performance data of the parent.’
26      It must be stated at the outset that the applicant does not contest the material accuracy of the facts recounted in recital 221 to the contested decision. It maintains, however, that they merely confirm that it had the potential to control NCHZ and not, as the case-law requires, that it actually and effectively exercised such control. The applicant refers in that regard to the statements of three former members of its board of directors who were also members of the board of directors of NCHZ, which it annexed to its application, and submits that they demonstrate that it did not exercise actual and effective control over NCHZ.
27      The applicant also submits that it is an investment company which acts as a pure financial investor, without participating in the day-to-day management of the companies in which it invests, and complains that the Commission failed to take account of that fact in the contested decision.
28      Lastly, the applicant emphasises that NCHZ and the applicant itself have always presented themselves as two distinct companies, with different names and logos and separate representation during the administrative procedure. As regards the consolidation of NCHZ’s turnover with its own, the applicant explains that that is an obligation laid down under national law, which does not establish that it exercised decisive influence over NCHZ. In addition, the fact, raised by the Commission in its pleadings before the Court, that NCHZ’s turnover represents a significant proportion of the consolidated turnover of the applicant’s group is irrelevant, as it was not mentioned in the contested decision and gives no indication of the – very low – value of the applicant’s shareholding in NCHZ.
29      In the light of the examination of those arguments, it must be observed that, according to the case-law mentioned in paragraph 19 above, in order to impute to the parent company the anti-competitive conduct of a subsidiary, the Commission cannot merely find that that company ‘was able to’ exert decisive influence over the conduct of its subsidiary on the market, without checking whether that influence actually was exerted. On the contrary, it is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual evidence (see Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136 and the case-law cited). Such evidence may include the fact that the two companies were controlled by the same persons, who held key functions within the companies’ management boards (see, to that effect, 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, paragraphs 119 and 120) or the fact that those companies were bound to follow the instructions issued by their single management and could not act independently on the market (see, to that effect, Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 527).
30      As the Court held in Knauf Gips v Commission, cited in paragraph 15 above (paragraph 100), in order to decide whether a company determines its conduct on the market independently, account must be taken of all the relevant factors relating to the economic, organisational and legal links which exist between it and the company in the same group that is considered to be responsible for the actions of that group, which may vary from case to case and cannot therefore be set out in an exhaustive list.
31      By way of guidance only it may be pointed out that, in the case-law, analysis of the existence of a single economic entity among a number of companies forming part of a group has involved consideration of the question whether the parent company had influenced the pricing policy of its subsidiary, production and distribution activities, sales objectives, gross margins, sales costs, cash-flow, stocks and marketing (see Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 64 and the case-law cited).
32      In addition, as the Commission observed in its pleadings, the Court held in its judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others v Commission, not published in the ECR (paragraph 106), that the fact that the parent company’s board of management had a coordinating role in respect of all the business units and sub-units of its group of subsidiaries confirmed the assessment that the parent company exercised decisive influence over the commercial policy of its subsidiaries.
33      Lastly, it is also apparent from the case-law mentioned in paragraph 19 above that the conduct of the subsidiary on the market cannot be the only factor which enables the liability of the parent company to be established, but is only one of the signs of the existence of an economic unit (Case C‑97/08 P Akzo Nobel and Others v Commission, cited in paragraph 18 above, paragraph 73).
34      In the present case, it is evident from the first indent of recital 221 to the contested decision (see paragraph 25 above) that in imputing to the applicant the anti‑competitive conduct of its subsidiary NCHZ, the Commission relied in particular on the fact that, in essence, throughout the period of the infringement, the majority of the members of the board of directors of NCHZ had been appointed by the applicant and were at the same time holding ‘functions in the [applicant’s group]’.
35      In order to verify that finding, the Court asked the applicant, by way of a measure of organisation of procedure, to inform it of the composition of the board of directors of NCHZ throughout the period of the infringement. It is clear from the applicant’s answer to that question, read in conjunction with NCHZ’s reply dated 13 March 2008 to a Commission request for information, which the Commission annexed to its defence, that, from the beginning of the period of the infringement until 25 April 2005, the board of directors of NCHZ was composed of seven members, six of whom were on the applicant’s board of directors at the same time.
36      On 25 April 2005, the composition of the board of directors of NCHZ was changed. The terms of office of four of its members, all of whom were at the same time members of the applicant’s board of directors, came to an end. Only two of them were replaced in their positions on the board of directors of NCHZ, as it only had five members after that date. One of the two new members was appointed shortly afterwards, on 27 May 2005, to serve also on the applicant’s board of directors, so that with effect from that date and until the next change in the composition of the board of directors of NCHZ, which occurred on 21 July 2006, three of its five members were at the same time members of the board of directors of the applicant.
37      On 21 July 2006, the terms of office of two members of NCHZ’s board of directors who were not also members of the applicant’s board of directors came to an end. They were replaced by two other persons, one of whom was a member of the applicant’s board of directors. Thus, from that date and until the end of the period of the infringement, four of the five members of the board of directors of NCHZ were at the same time members of the applicant’s board of directors.
38      It should also be noted that it is evident from Article X(1) of NCHZ’s Articles of Association, produced by the Commission, that the board of directors is that company’s main management body, authorised to manage its activities and, unless otherwise stipulated, to take decisions on any matter concerning it. The same provision states, inter alia, at (a), that the board of directors ‘exercises the commercial management of the company and provides for any and all operational and organisational matters’.
39      In addition it is evident from Article X(2) and (8) of NCHZ’s Articles of Association that, as stated in recital 221 to the contested decision, NCHZ’s board of directors is composed of five members and decides by simple majority.
40      It is apparent from this that throughout almost the entire period of the infringement, the board of directors of NCHZ, the company’s main decision‑making body, was controlled by the applicant, in so far as the majority of the board members were representatives of the applicant. It follows that, during that period, the board of directors of NCHZ could not take any decision without the agreement of members who were also members of the applicant’s board of directors. Conversely, the board members who were members of the applicant’s board of directors and had been chosen by the applicant were always in a position to form a majority and to take decisions without obtaining the agreement of the other members.
41      Contrary to the applicant’s submission, the Commission was not obliged to mention in the contested decision specific decisions taken by NCHZ’s board of directors, in order to prove the decisive influence that the applicant exercised over its subsidiary, NCHZ. Since the board of directors of NCHZ was, according to the company’s Articles of Association, its main decision-making body, and it was effectively controlled by the applicant, it was reasonable to conclude that the board took all the important decisions in relation to the operation and management of NCHZ and that those decisions were essentially taken by the applicant, in the sense that they were, by majority, taken by persons who also sat on the applicant’s board of directors.
42      It would be otherwise only if there were evidence from which it might be concluded that the direction and management of NCHZ actually differed from that provided for by its Articles of Association, in the sense that that company was in fact directed by other bodies or persons not linked to the applicant.
43      However, that conclusion cannot be drawn from the documents relied on by the applicant in that regard, namely the three affidavits provided by Messrs R., L. and K. annexed to the application. The authors of those statements were, during the relevant period, members both of the board of directors of NCHZ and of the applicant’s board of directors or supervisory board.
44      Admittedly, in their statements all three confirm that they were not involved in the ‘commercial’ management of NCHZ. However, it is apparent from their statements that the board of directors met regularly throughout the period of the infringement. Thus, Mr K. confirms that he participated in meetings of that board approximately once a month. Furthermore, the three statements all confirm that decisions on important issues for NCHZ were taken by its board of directors.
45      In particular, Mr R. states in his affidavit that the board of directors approved ‘only significant documents, such as annual reports or financial statements’, and that it ‘dealt with strategic issues, such as financing, closure of non-profitable units, or purchase of shares’. Mr L. confirmed that the board of directors of NCHZ ‘concerned itself exclusively with fundamental strategic decisions, such as the decision to sell off or close certain divisions, the financial performance of NCHZ, and the approvals of financial statements and annual reports that were submitted by the NCHZ management’. Finally, according to Mr K., ‘the main role of the [board of directors] was to approve the company’s various investment projects and to obtain their financing, to oversee the company financials and business results and to resolve other crucial problems such as excessive cost of energy or the notoriously insufficient cash-flow levels’.
46      It is apparent from those statements that the applicant was influencing NCHZ’s decisions on significant and ‘strategic’ issues, or even imposing them, by means of the applicant’s designated members of NCHZ’s board of directors. That fact unquestionably establishes the exercise of decisive influence by the applicant over its subsidiary, particularly as some of the issues which, according to those statements, were dealt with by the board of directors of that subsidiary related to areas referred to in the case-law cited in paragraph 31 above. The decisions to ‘sell off or close certain divisions’ and those relating to ‘various investment projects’ relate to production activities referred to in that case-law, and ‘cash‑flow’ is expressly mentioned in it.
47      It can, moreover, be inferred from two of the three affidavits that the purpose of the applicant’s appointment of its own nominees to the board of directors of NCHZ was to ensure, by majority composition, that it controlled its subsidiary. Thus Mr R. observes in his statement that, ‘considering that NCHZ was a significant investment of [the applicant, the latter] wished to have its nominees in NCHZ’. For his part, Mr L. states that ‘[his] task on the board of directors of NCHZ was primarily to protect the interests of [the applicant]’.
48      In that regard, it may be concluded from the case-law referred to in paragraphs 30 and 31 above that a – greater or lesser – degree of autonomy of a subsidiary in its own commercial management is not necessarily incompatible with the parent company’s decisive influence, within the meaning of the case-law cited in paragraph 29 above, over that subsidiary. As the case-law cited in paragraph 32 above confirms, such decisive influence can also be inferred from the organisational links between the parent company and its subsidiary. From that aspect, the fact that the parent company controls the main management entity of the subsidiary – through its own nominees, who also perform duties in its own management bodies – unquestionably constitutes an organisational link attesting to such influence.
49      Nor is the exercise by the applicant of decisive influence over its subsidiary NCHZ incompatible with the delegation of tasks of varying importance to NCHZ’s management, particularly as, according to NCHZ’s Articles of Association, its board of directors, dominated by representatives of the applicant, had the right to intervene at any time. It should be noted in that regard that Mr R. declared in his affidavit that ‘[the board of directors] as such just approved proposals presented to it by the management’. It could in fact therefore decide to reject the management’s proposals and take a different decision. The fact that it may have chosen not to do so does not mean that it did not exert decisive influence over NCHZ’s management.
50      Furthermore, in support of its argument that it behaved like a ‘pure financial investor’ in relation to NCHZ, the applicant relied on the Opinion of Advocate General Kokott in Case C‑97/08 P Akzo Nobel and Others v Commission, cited in paragraph 18 above (ECR I‑8241, point 75 and footnote 67). That refers, by way of example of a parent company that ‘exercised restraint’ and ‘did not influence the market conduct of its subsidiary’, to a case in which ‘the parent company is an investment company and behaves like a pure financial investor’. That Opinion does not, however, provide any additional information about the characteristics of a ‘pure financial investor’ and merely refers to the Opinion of Advocate General Warner in Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, 266.
51      The latter Opinion refers to ‘such a case as that of (say) an insurance company, or of a company which is a trustee of a pension fund, acquiring by way of investment a controlling interest in a trading company’ in which the presumption mentioned in paragraph 21 above could be rebutted. However, as a general rule, insurance companies or pension funds acquire shareholdings in companies in order to ensure that their assets are invested securely and profitably, and are not interested in exercising control over the various companies in which they have acquired an interest.
52      The reference in the Opinion of Advocate General Kokott in Case C‑97/08 P Akzo Nobel and Others v Commission, cited in paragraph 50 above, to a ‘pure financial investor’ must therefore be understood as referring to the case of an investor who holds shares in a company in order to make a profit, but who refrains from any involvement in its management and in its control. That is evidently not so in the applicant’s case, given the considerations in paragraphs 43 to 49 above, and it must therefore be concluded that, contrary to the applicant’s contention, it was not acting as a pure financial investor in the present case.
53      Nor can the Court accept the applicant’s argument in its reply that it is essentially an investment company aiming to achieve a maximum return on its investments. The applicant states that it acquires assets when it sees the potential to generate profit either from the holding of such assets or from their subsequent disposal at a price above their acquisition value. It did not acquire NCHZ in order to become involved in the chemical industry but simply with a view to reselling it subsequently at a profit.
54      In that regard, it must be noted that, in General Química and Others v Commission, cited in paragraph 16 above (paragraphs 86 and 87), the Court ruled that a holding company and another company that participated in an infringement of the competition rules could together be regarded as forming part of the same economic unit, so that the holding company could be held jointly and severally liable for that infringement. It follows from this that an economic unit, within the meaning of the case-law cited in paragraphs 16 and 17 above, may be made up of a holding company and, more generally, a company, like the applicant, engaged in the acquisition and holding of shares in other companies.
55      As regards the applicant’s reference to the fact that it did not have the same representation as NCHZ during the administrative procedure and that it has always presented itself as a distinct company with a different name and logo from those of NCHZ, it must be noted that the fact that one of the companies in a group had presented itself as being the Commission’s sole interlocutor concerning an infringement, or the fact that a company had replied to the Commission’s request for information using the headed notepaper of another company in the same group has certainly been accepted in the case-law as supporting the finding that one of the two companies concerned exerted decisive influence over the other and that they both formed part of the same economic entity (see, to that effect, Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 29, and Case T‑66/99 Minoan Lines v Commission [2003] ECR II‑5515, paragraphs 137 and 138).
56      However, contrary to the applicant’s submission, it cannot be inferred a contrario on the basis of that case-law that it is sufficient that a subsidiary is not represented by the same person during the administrative procedure and that it has its own name and logo, distinct from those used by its parent company, for the conclusion to be drawn that the parent company does not exert decisive influence over the subsidiary.
57      Lastly, as regards the reference in the contested decision to the fact that NCHZ’s turnover had been consolidated with the applicant’s turnover, while it is not necessary, in the light of the foregoing considerations, to determine whether that fact would by itself suffice for the conclusion to be drawn that the applicant exerted decisive influence over NCHZ, it must be noted that it certainly corroborates that conclusion, even if that consolidation is, as the applicant submits, mandatory under the national law applicable.
58      It follows from all the foregoing considerations that the first plea in law is unfounded and must be rejected.
The second, third and fourth pleas in law, relating to the use of the applicant’s 2007 turnover instead of its 2008 turnover to establish the 10% turnover ceiling provided for in Article 23(2) of Regulation No 1/2003
Relevant recitals to the contested decision
59      In recitals 333 and 334 to the contested decision, the Commission stated the following with regard to the ceiling of 10% of the turnover of the addressee of a decision imposing a fine, as provided for in Article 23(2) of Regulation No 1/2003:
‘(333) Article 23(2) of Regulation No 1/2003 provides that the fine imposed on each undertaking shall not exceed 10% of its total turnover relating to the business year preceding the date of the Commission decision. In case the undertaking broke up before the date of the Commission decision the Commission calculates the 10% limit for each legal entity individually … In determining the “preceding business year”, the Commission assesses, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No [1/2003], the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed …
(334) Based on the case-law mentioned in recital (333) [the applicant] is being assessed individually... Furthermore, the [applicant’s] shareholders … mandated the Board of Directors in 2007 to sell all assets (including NCHZ) with a view to terminating its activities and eventually distribute the income to its shareholders. This led to a decrease of turnover by more than 90% in 2008 if compared to the previous year. Therefore, the Commission decides to use 2007 as the reference year, and thus a turnover of EUR 229 million.’
60      In footnote 664, accompanying recital 333 to the contested decision, the Commission refers to the 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 390, while in footnote 665, which accompanies the same recital, it refers, inter alia, to Case T‑33/02 Britannia Alloys & Chemicals v Commission [2005] ECR II‑4973 (‘the General Court’s judgment in Britannia’), paragraphs 72 to 74, and to Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405 (‘the Court of Justice’s judgment in Britannia’), paragraph 25, dismissing the appeal against the General Court’s judgment. In footnote 666, accompanying recital 334 to the contested decision, reference is made to recital 23, which states that in 2007 the applicant divested its shareholding in NCHZ. In footnote 667, which accompanies recital 334 to the contested decision, reference is made to recital 24 which mentions the annual turnover of EUR 229 million, mentioned again at the end of recital 334.
61      The applicant’s second, third and fourth pleas in law relate to that part of the contested decision. It is appropriate to examine first of all the fourth plea, concerning the statement of reasons, then the third plea, concerning the right to be heard, and finally the second plea, by which the applicant complains that the Commission erred in law in that it decided to use the applicant’s 2007 turnover instead of the applicant’s 2008 turnover to establish the ceiling provided for in Article 23(2) of Regulation No 1/2003.
The fourth plea in law, alleging infringement of the obligation to state reasons as regards the question of the turnover to be taken into account in calculating the ceiling of the fine
62      The applicant complains that the Commission failed to state the reasons for its decision to depart from the general rule on taking into account the preceding business year for the purpose of calculating the 10% ceiling provided for in Article 23(2) of Regulation No 1/2003. The applicant states that the Commission confined itself to citing the judgments of the General Court and of the Court of Justice in Britannia, cited in paragraph 60 above (together ‘the Britannia case‑law’), and to noting that the applicant had decided to sell all its assets with a view to terminating its activities. The Commission went on to draw the arbitrary conclusion that it was appropriate to use 2007 as the reference year. The applicant observes in that respect that, as it submits in connection with its second plea, the decrease in its turnover alone is not sufficient reason to depart from the general rule on calculating the 10% turnover ceiling. Even if the Commission did take other considerations into account, it did not set them out in the contested decision.
63      It has consistently been held that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see Joined Cases T‑239/04 and T‑323/04 Italy v Commission [2007] ECR II‑3265, paragraph 117 and the case-law cited). Indeed, the fact that a statement of reasons is incorrect does not mean that it does not exist (see Case T‑368/09 P Sevenier v Commission [2010] ECR II‑0000, paragraph 25 and the case-law cited).
64      In the present case, the reasons for the Commission’s decision to use the applicant’s 2007 turnover, instead of that of 2008, to calculate the 10% turnover ceiling are set out in recitals 333 and 334 to the contested decision, as the Commission correctly states in the defence.
65      In its reply, the applicant itself acknowledges that there ‘seems to be no dispute’ about the fact that the reasons for the use of the 2007 turnover for the purpose of calculating the 10% cap are contained in recitals 333 and 334 to the contested decision. Nevertheless it maintains that the Commission set out additional considerations in the defence which do not appear in the contested decision.
66      The precise scope of the statement of reasons given in the contested decision and the question whether they are correct are issues that go to the substance of the contested measure and will be examined in the analysis of the second plea, which concerns precisely those issues. On the other hand, as is apparent from the case‑law cited in paragraph 63 above, even if the applicant’s assertions in relation to those issues are assumed to be correct, they do not call into question the actual existence of the statement of reasons for the contested decision. It follows that the fourth plea in law is unfounded and must be rejected.
The third plea in law, alleging infringement of the applicant’s right to be heard as regards the question of the turnover to be taken into account in calculating the ceiling of the fine
67      The applicant submits that the contested decision was adopted in breach of its right to be heard, as provided for in Article 27 of Regulation No 1/2003 and under settled case-law, inasmuch as the Commission failed to give it an opportunity to make submissions on the use of its 2007 turnover, instead of its 2008 turnover, for the purpose of calculating the cap on the fine. Consequently, the applicant asks the Court to annul Article 2 of the contested decision in so far as it is addressed to the applicant or, in the alternative, to exercise its unlimited jurisdiction and reduce the fine imposed on the applicant to an amount not exceeding 10% of its turnover for 2008.
68      According to settled case-law, provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraph 68 and the case-law cited).
69      It follows that, so far as concerns the determination of the amount of the fines, the rights of defence of the undertakings concerned are guaranteed in proceedings before the Commission by virtue of the fact that they have the opportunity to make their submissions on the duration, the gravity and the anti-competitive nature of the matters of which they are accused. Moreover, the undertakings have an additional guarantee, as regards the setting of that amount, in that the General Court has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 31 of Regulation No 1/2003 (Case T‑83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 235, and Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 200).
70      In the present case, as the copy of the statement of objections included in the case‑file shows, that statement did mention the matters required by the case-law cited in the two preceding paragraphs.
71      The applicant is aware of the case-law cited in paragraph 68 above, which the applicant itself cites in its pleadings. It takes the view, however, on the basis of Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraphs 77 and 78, that that case-law is applicable where the Commission has determined the amount of the fine in accordance with the general method set out in the Guidelines. In the present case, however, the Commission departed from those guidelines, which provide, in point 32, for the turnover in the preceding business year to be taken into account in the calculation of the cap on the fine. It follows that the Commission should have indicated its intention in that regard in advance to the undertakings concerned, set out the legal and factual basis for it and given those undertakings the opportunity to state their views.
72      It must be observed that the applicant has misread the judgment in ABB Asea Brown Boveri v Commission, cited in paragraph 71 above (paragraphs 77 and 78). Although they are two consecutive paragraphs, there is no logical link between them. In paragraph 77 of that judgment the Court merely found, as a preliminary point, that it was common ground that the fine imposed in that case had been determined in accordance with the method set out in the Commission’s guidelines. In the next paragraph (paragraph 78), the Court recalled the settled case-law, also recalled in paragraph 68 above. There is nothing in ABB Asea Brown Boveri v Commission, cited in paragraph 71 above, to indicate that that settled case-law is applicable only where the Commission has adhered to its own guidelines. On the contrary, in the same judgment the Court held, inter alia, that the Commission was not under an obligation, in respecting the right of the applicant in that case to be heard, to inform that applicant of its intention to apply new guidelines in its case, which had been adopted after notification of the statement of objections (ABB Asea Brown Boveri v Commission, cited in paragraph 71 above, paragraph 88).
73      It is apparent from settled case-law that the Commission is not obliged, when indicating the elements of fact and of law on which it is to base its calculation of the fines, to explain the way in which it would use each of those elements in determining the level of the fine (LR AF 1998 v Commission, cited in paragraph 69 above, paragraph 206, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 369).
74      More generally, assessment of the facts is a part of the decision-making act itself and the right to be heard extends to all the matters of fact and of law which form the basis for the decision-making act but not the final position which the administration intends to adopt (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 94).
75      The applicant also submits that the statement of objections expressly referred to the general rule on calculation of fines on the basis of the turnover of the preceding year and did not mention the possibility that the Commission would depart from it. Similarly, in its request for information of 9 March 2009, the Commission again alluded to that rule and expressly asked the applicant to send it details of its turnover for the ‘last full business year’. The applicant replied by sending – by email of 30 March 2009 – details of its turnover for 2007, but only because it had not yet reported its turnover for 2008. Nevertheless, in response to a subsequent request for information, which the Commission sent to the applicant by email of 7 May 2009, the applicant, by letter of 11 May 2009, sent the Commission details of its turnover for 2008.
76      The applicant therefore takes the view that the Commission was required to give it an opportunity to be heard on the principal elements of fact on which the Commission based its decision to use 2007 as the reference year in calculating the cap on the fine that it was going to impose on the applicant. The applicant refers in support of its reasoning to Archer Daniels Midland v Commission, cited in paragraph 68 above.
77      It must be noted that, while the applicant’s assertions summarised in paragraph 75 above are correct, it omits the fact that the information in recital 334 to the contested decision, relating to the mandate given by the applicant’s shareholders to its board of directors to sell all its assets with a view to terminating its activities, comes from a letter of 3 April 2009 which the applicant itself sent to the Commission. That letter followed the Commission’s request for information of 9 March 2009, and supplemented the applicant’s initial response, sent by email on 30 March 2009.
78      It is evident that the matters taken into account by the Commission in calculating the ceiling for the fine to be imposed on the applicant, namely both the applicant’s turnover in 2007 and 2008, and the information relating to the disposal of its assets with a view to the termination of its activities, were all supplied by the applicant itself. Thus, what the applicant seems to be arguing by the present plea is that the Commission should have warned it of its intention to rely on the information which the applicant had itself provided by its letter of 3 April 2009, in order to apply the Britannia case-law in this case and to give the applicant an opportunity to comment on that eventuality. However, the legal consequences that the Commission is going to draw from an assessment of the relevant facts of a case form part of the final position that it intends to adopt, to which the right to be heard does not extend, as the case-law cited in paragraph 74 above shows.
79      Indeed, a party which itself submitted the facts in question was by definition in a position to state their possible relevance to the resolution of the case at the time when it submitted them (see, by analogy, Case C‑53/11 P OHIM v Nike International [2012] ECR I‑0000, paragraph 53; see, to that effect and by analogy, order of 4 March 2010 in Case C‑193/09 P Kaul v OHIM, not published in the ECR, paragraph 66).
80      As to Archer Daniels Midland v Commission, cited in paragraph 68 above, to which the applicant refers, it is of no relevance at all. In that case, the Court of Justice considered that the Commission had infringed the rights of defence of the undertaking concerned in that it had not referred in the statement of objections to the facts on which it had subsequently relied in the decision at issue, but had merely annexed to that statement the documents from which those facts emerged, which, according to the Court of Justice, was not sufficient in the circumstances of that case (Archer Daniels Midland v Commission, cited in paragraph 68 above, paragraphs 81, 82 and 89). The circumstances of the present case are not at all comparable, since, in the present case, the Commission relied in recital 334 to the contested decision on a factual statement by the applicant itself.
81      In the light of all the foregoing considerations, the third plea in law must be rejected as unfounded.
The second plea in law, alleging an error of law in that the Commission used the applicant’s 2007 turnover instead of its 2008 turnover to establish the 10% turnover ceiling provided for in Article 23(2) of Regulation No 1/2003
82      The applicant submits that the circumstances of the present case do not fall within the ‘exceptional circumstances’ envisaged in the Britannia case-law. According to the applicant, in compliance with the principle of legal certainty and taking account also of the purpose of the upper limit of the fine provided for in Article 23(2) of Regulation No 1/2003, the concept of ‘exceptional circumstances’ must be applied strictly. Thus, according to the applicant, it is clear from the General Court’s judgment in Britannia, cited in paragraph 60 above (paragraph 49), that as long as an undertaking has in fact achieved a turnover during the last complete business year preceding adoption of the decision imposing a fine in which economic activities, albeit on a reduced scale, have been carried on, the Commission should calculate the upper limit of the fine taking that turnover into account. Both the Court of Justice’s judgment in Britannia, cited in paragraph 60 above (paragraph 30), and the Opinion of Advocate General Bot in that case (ECR I‑4408, points 62 to 65) confirm that view.
83      In the present case, unlike that which gave rise to the Britannia case-law, the applicant had not decided to terminate its activities, much less begun to implement such a decision. The applicant explains that although its general meeting decided in 2007 to sell a certain number of assets, no decision was taken on the dissolution of the company. In reaching the opposite conclusion in recital 334 to the contested decision, the Commission made a mistake. The Commission relied in that regard on a single, ambiguous statement made by the applicant, in passing, in its remarks on its inability to pay. The applicant was unable to provide the necessary clarification in respect of that statement, having been unaware of the Commission’s intention to take the 2007 business year into account in calculating the upper limit of the fine.
84      The applicant adds that in 2008 it achieved a turnover of EUR 21 million, reflecting an entire year of normal economic activity. It communicated that figure to the Commission on 11 May 2009 in response to a request for information. According to the applicant, the emphasis on the significant decrease in its turnover between 2007 and 2008 gives an especially misleading impression. That decrease did not arise from any diversion by the applicant of its turnover, but from the decision to sell its shares in NCHZ in order to realise the value of that investment, which was not yielding the expected profit. In the applicant’s submission it is not unusual for an investment company to buy and sell the companies in its portfolio depending on the market prospects, and it thus decided to adjust its investment portfolio and to invest the capital realised in long-term loans. Those loans, entered into in 2009, are irrelevant to the calculation of its turnover in 2007 and 2008.
85      Consequently, the applicant takes the view that the Commission erred in law in using the applicant’s 2007 turnover in order to calculate the upper limit of the fine imposed on it, and asks the Court to annul Article 2 of the contested decision or, in the alternative, in the exercise of its unlimited jurisdiction, to reduce the fine to an amount not exceeding 10% of its turnover in 2008, that is EUR 2.1 million.
86      It must be observed that, according to the Britannia case-law, for the purposes of calculating the upper limit of the fine provided for in Article 23(2) of Regulation No 1/2003, the Commission must, in principle, take into account the turnover achieved by the undertaking concerned in the last full business year at the date of adoption of the decision imposing the fine. It is apparent, however, from the context and the objectives pursued by the legislation of which that provision forms part, that where the turnover in the business year preceding the adoption of the Commission’s decision does not represent a full year of normal economic activity over a period of 12 months and, thus, does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of fine to impose on it, that turnover cannot be taken into account in fixing the upper limit of the fine. In the latter situation, which will arise only in exceptional circumstances, the Commission is obliged, for the purposes of calculating the upper limit of the fine, to refer to the last full business year corresponding to a full year of normal economic activity (General Court’s judgment in Britannia, cited in paragraph 60 above, paragraphs 37 to 42, 48 to 51 and 74, and the Court of Justice’s judgment in Britannia, cited in paragraph 60 above, paragraphs 25 to 30).
87      The applicant’s argument, as summarised in paragraph 82 above, that, as long as an undertaking has achieved a turnover during the last complete business year preceding adoption of the decision imposing a fine, it is that turnover that should be taken into account for the purposes of establishing the upper limit of the fine, is based on a partial reading of the General Court’s judgment in Britannia, cited in paragraph 60 above, and cannot be accepted. Paragraph 49 of that judgment, invoked by the applicant, envisages a situation in which, in a business year that is normal in terms of economic activity, an undertaking’s turnover has fallen significantly, or indeed substantially, as compared with previous years, for reasons such as a difficult economic context, a crisis in the sector concerned, an accident or a strike. The General Court noted that such eventualities did not preclude the turnover achieved in that business year from being taken into account for the purposes of the calculation of the upper limit of the fine. It is apparent from paragraph 50 of that judgment, however, that the same does not apply where the undertaking concerned did not carry on its normal activities throughout the whole of a business year but was in the process of running down its commercial activities. As the Commission correctly contends, that conclusion is confirmed by the fact that, in its judgment in Britannia, the General Court approved the reference – for the purposes of the calculation of the upper limit of the fine – to the turnover of the undertaking concerned in the 1996 business year, although, as paragraph 47 of that judgment shows, the undertaking in question had also achieved an – albeit reduced – turnover in the following two business years, that is in 1997 and 1998.
88      It should be noted, moreover, having regard to the applicant’s references, on the one hand, to the objective pursued by Article 23(2) of Regulation No 1/2003 and, on the other, to the principle of legal certainty, that the interpretation of that provision resulting from the Britannia case-law, summarised in the preceding paragraph, stems precisely from its objective and does not in any way breach the principle of legal certainty (see, to that effect, the Court of Justice’s judgment in Britannia, cited in paragraph 60 above, paragraphs 21 to 25 and 79 to 84, and the General Court’s judgment in Britannia, cited in paragraph 60 above, paragraphs 43, 45 and 69 to 74).
89      As regards the applicant’s argument that the emphasis on its turnover alone is particularly misleading, since the significant drop in that turnover between 2007 and 2008 is principally due to the sale of its shareholding in NCHZ, it is sufficient to note that turnover is the only relevant criterion laid down in Article 23(2) of Regulation No 1/2003 for the determination of the upper limit of the fine.
90      It follows from the foregoing considerations that the question which arises in the present case is whether the applicant’s turnover in the 2008 business year represents a full year of normal economic activity over a period of 12 months. The contested decision answered that question in the negative, for the reasons given in recital 334, which essentially reproduces the information provided by the applicant itself in its letter to the Commission of 3 April 2009 (see paragraph 77 above).
91      It should be noted at the outset that the applicant was wrong to describe that information as ambiguous. The content of the relevant paragraph of its letter of 3 April 2009 is not at all ambivalent. It is clearly stated that at the ordinary general meeting on 20 June 2007 the applicant’s shareholders adopted a resolution which gave the board of directors a mandate to sell the applicant’s assets. The same paragraph goes on to state that that measure was the first step in a process leading to the cessation of the applicant’s activities, its aim being to simplify the property ‘structure’ of the applicant which would subsequently be constituted of financial means on account which would then be distributed proportionally among the shareholders.
92      The information concerning the mandate given by the general meeting to the applicant’s board of directors for the sale of the applicant’s assets is entirely accurate, as the minutes of that meeting, produced by the applicant itself, demonstrate. It must also be pointed out that, as those minutes show, the mandate related to the sale of ‘all or part’ of the applicant’s assets. Contrary, therefore, to the applicant’s contention, it was not just a question of the sale of ‘a number of assets’ but, at least potentially, of the sale of all its assets.
93      It is apparent from the documents in the case that, on the basis of that mandate, the applicant sold a large proportion of its assets, or even all of them. In the defence, the Commission provided a list of the main assets of the applicant which the latter had sold, and also produced a copy of an article written in Slovak which appeared on 25 April 2009 in the Slovak newspaper Pravda, according to which the applicant had ‘already sold all of its assets’ and had EUR 63.23 million in its accounts. The same article provides a list of the various assets sold by the applicant.
94      The applicant did not dispute the material accuracy of that information in its reply, and even produced a translation of the Pravda newspaper article into the language of the case. The applicant merely stated that, in so far as the article referred to a general meeting that was shortly to be held to determine the applicant’s fate, it proved that no decision on the applicant’s dissolution had been taken in 2008.
95      In its written pleadings the applicant also endeavours to present the sale of its assets as part of the normal activity of an investment company. That argument cannot be accepted, however.
96      First of all, it has already been noted in the examination of the first plea (see, in particular, paragraph 52 above) that, with regard to its shares in NCHZ, the applicant was not acting as a ‘pure financial investor’ but, on the contrary, formed part of the same economic unit as that company.
97      Secondly, if the applicant’s sale of assets in 2008 was part of its ordinary commercial activity, it is difficult to understand why a special mandate to that effect was given to the board of directors by the general meeting.
98      Thirdly, while an investment company does indeed sell as well as buy shares in other companies as part of its normal commercial activity, it is not at all apparent in the present case, either from the applicant’s assertions or from the documents in the case, that the applicant acquired any shares in another company in 2008, despite the fact that it apparently had sufficient liquidity for such purchases as a result of the sale of assets.
99      Fourthly, both the letter of 3 April 2009 and the other documents in the case confirm that the sale of the applicant’s assets following the decision of its general meeting on 20 June 2007 did not form part of its normal economic activity. Instead, those sales were designed to realise the value of the assets concerned, that is to say, to convert them into cash. It is also apparent that the distribution to the applicant’s shareholders of the funds thus obtained, and the applicant’s dissolution, although not formally decided, were at least an option that was seriously contemplated.
100    Thus, the letter of 3 April 2009 clearly states that the sale of the applicant’s assets was only the first stage in a process leading to the distribution of the proceeds of that sale to the applicant’s shareholders, and to the applicant’s dissolution. The Pravda article referred to above (paragraph 93) states that a general meeting that was to be held at the end of April 2009 would determine the applicant’s fate, and attributes the following words to the chairman of the applicant’s board of directors: ‘The shareholders will decide whether [the applicant] will be in liquidation or [whether its funds will continue to be invested] somewhere’.
101    Lastly, the applicant produced in the annex to its reply an article which, according to the applicant, appeared on its internet site on 1 July 2009. According to that article, at the applicant’s annual general meeting held the previous day, 30 June 2009, its shareholders had mandated its board of directors to convene an extraordinary general meeting to decide on the ‘further development of the company, such as its liquidation, the repurchase of own shares’ or other alternative approaches that might entail the continuation of the applicant’s commercial activity or the termination of that activity and payment to shareholders of the value of their shares.
102    The applicant emphasises that the general meeting took no decision on the applicant’s dissolution. It takes the view that, in the absence of such a decision, the Britannia case-law does not apply in the present case. It complains that the Commission relied solely on the information in the letter of 3 April 2009, without considering whether the applicant’s general meeting had in fact decided on the applicant’s dissolution. For its part, the Commission maintains that it was entitled to rely on the letter of 3 April 2009, which was sent in response to a request for information. It cannot reasonably be expected to check the accuracy of information provided by the interested party itself.
103    It must be observed that the fact that there was no decision on the applicant’s dissolution is indeed – implicitly but necessarily – apparent from the letter of 3 April 2009. Since the dissolution of a company entails the realisation of its assets for payment of any debts and, subsequently, the distribution of the proceeds to its shareholders, if the applicant’s general meeting had decided to liquidate the applicant, the decision of 20 June 2007 mandating the applicant’s board of directors to proceed with the sale of assets would have been superfluous and would have made no sense.
104    However, even without a decision of the general meeting on the applicant’s dissolution, the Commission was entitled to apply the Britannia case-law in the present case, since the applicant’s turnover in 2008 did not represent a full year of normal economic activity, within the meaning of that case-law.
105    It is apparent from the considerations set out above (see paragraphs 95 to 101) that, pursuant to the decision taken at its general meeting on 20 June 2007, the applicant sold assets in 2008 and converted their value into cash, which enabled it to give serious consideration, at least as one of the possible options, to its dissolution and the distribution of its remaining assets to its shareholders. It must be observed that such conduct – which, moreover, as the Commission correctly submits, prompted a very significant drop in the applicant’s turnover between 2007 and 2008 – does not form part of the normal economic activities of a commercial company.
106    It matters little in that regard that the applicant’s shareholders ultimately did not opt for its immediate dissolution. What is important is that in 2008 the applicant’s conduct was that of a company in the process of terminating its activities, with the associated consequences as set out in paragraph 105 above, just like the applicant in the case giving rise to the Britannia case-law. That conduct is sufficient to justify the application of that case-law in the present case.
107    Nor can the applicant’s assertion that it had decided to ‘change its investment portfolio’ and accordingly invest its capital in long-term loans lead to a different conclusion. Even on the assumption that those loans are part of the applicant’s normal economic activity, the applicant itself admits that those loans were entered into in 2009. There is nothing in the file to indicate that the applicant’s managers or shareholders had decided in 2007 or in 2008 to redirect its economic activity towards such loans. On the contrary, as has already been pointed out (see paragraph 105), there is confirmation from a number of sources that, in 2008, the applicant was in the process of terminating its activities and realising the value of its assets, while seriously contemplating dissolution and the distribution to its shareholders of the value thus realised. The fact that, a year later, it ultimately preferred to invest the value thus realised in long-term loans is of no relevance in that respect.
108    It is apparent from all the foregoing considerations that, having correctly found that the turnover for the business year 2007, not 2008, corresponded to the last year of activity reflecting the applicant’s real economic situation, the Commission was entitled, without thereby erring in law, to use the applicant’s 2007 turnover for the purpose of establishing the 10% turnover ceiling provided for in Article 23(2) of Regulation No 1/2003. Accordingly, the second plea in law is unfounded and must therefore be rejected.
The fifth plea in law, alleging breach of the principle of proportionality, given the disproportionate nature of the amount of the fine imposed on the applicant
109    By its fifth plea in law, the applicant submits that, while the penalties laid down in Regulation No 1/2003 are, according to the case-law, a key instrument available to the Commission for ensuring that a system is established that ensures that competition in the internal market is not distorted (as required by Article 3(l)(g) EC), that does not mean that the imposition of large fines for infringements of the competition rules will in every case achieve that objective. On the contrary, according to the applicant, in compliance with the principle of proportionality, the Commission must also have regard to whether the objective of furthering competition is being achieved, and refrain from adopting decisions which have precisely the opposite effect, for instance by creating a monopoly in a particular market. In support of its arguments, the applicant refers to the example mentioned in the Opinion of Advocate General Geelhoed in Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, I‑5863, point 61 and footnote 15, which concerns a cartel involving several smaller players on the market and one major player which had received immunity on account of its cooperation with the Commission, and in which the Commission’s imposition of very high fines on the smaller players could have resulted in their disappearance from the market and created a monopoly.
110    The applicant takes the view that, in the present case, the overall effect of the contested decision runs precisely counter to the objective of Article 3(1)(g) EC, since significant fines have been imposed on a certain number of small undertakings that threaten their existence, whereas Akzo Nobel, the largest company on the market, received immunity. Thus, according to the applicant, the contested decision will have the effect of reducing the number of competitors on the market and strengthening Akzo Nobel’s position, which could result in Akzo Nobel having a dominant position, or even a monopoly.
111    The applicant refers in that context to the fact that six of the addressees of the contested decision asked the Commission to take account of their inability to pay, within the meaning of point 35 of the Guidelines; the fact that, shortly before that request was made, NCHZ sought protection from its creditors under the national law applicable; and the fact that, according to information published on the internet, two other addressees of the contested decision submitted applications to the General Court for interim measures, claiming that they would face insolvency if they were forced to pay the fine. The applicant concludes from this that the fine imposed by the contested decision on NCHZ and on the applicant itself is disproportionate, and invites the Court, in the exercise of its unlimited jurisdiction, to cancel or reduce it.
112    It must be observed that the Commission has a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (see Joined Cases T‑236/01, T-239/01, T-244/01 to T‑246/01, T‑251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 216 and the case‑law cited).
113    However, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principles of equal treatment and of proportionality as interpreted by the Courts of the European Union (Case T‑138/07 Schindler Holding and Others v Commission [2011] ECR II‑0000, paragraph 105).
114    Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, the Commission is to have regard both to the gravity and to the duration of the infringement. It follows from the case-law that, in that context, the Commission must in particular ensure that its action has the necessary deterrent effect (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 106, and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 272).
115    The need to ensure that the fine has a sufficient deterrent effect, where it is not found to justify raising the general level of fines in the context of the implementation of a competition policy, requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the contrary excessive, in particular in the light of the financial capacity of the undertaking in question, in accordance with the requirements arising from, on the one hand, the need to ensure effectiveness of the fine and, on the other, compliance with the principle of proportionality (Degussa v Commission, cited in paragraph 114 above, paragraph 283, and Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 379).
116    Thus, it cannot be ruled out that, in accordance with that case-law, the Commission may decide in a particular case to reduce the fine to be imposed for an infringement of Article 81 EC, in order to avoid the situation contemplated in the Opinion of Advocate General Geelhoed in Showa Denko v Commission, cited in paragraph 109 above and invoked by the applicant.
117    It must also be borne in mind that point 35 of the Guidelines allows the Commission, in exceptional cases and if the conditions laid down to that effect by that provision are satisfied, to take account of an undertaking’s inability to pay.
118    That said, it must also be noted that it has repeatedly been held that the Commission is not, in principle, required when determining the amount of the fine to take account of an undertaking’s financial losses, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market (Dansk Rørindustri and Others v Commission, cited in paragraph 29 above, paragraph 327; Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 351; and Tokai Carbon and Others v Commission, cited in paragraph 112 above, paragraph 370).
119    Furthermore, the fact that a measure taken by a European Union authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by European Union law. Although the liquidation of an undertaking in its existing legal form may adversely affect the financial interests of the owners, investors or shareholders, it does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value (Tokai Carbon and Others v Commission, cited in paragraph 112 above, paragraph 372; Case T‑64/02 Heubach v Commission [2005] ECR II‑5137, paragraph 163; and Case T‑452/05 BST v Commission [2010] ECR II‑1373, paragraph 96).
120    The arguments put forward by the applicant in connection with the present plea must be examined in the light of all the foregoing considerations.
121    It must be noted, as a preliminary point, that, in its written pleadings, the Commission essentially challenges the effectiveness of the present plea. It observes that the applicant exited the calcium carbide market even though the fine imposed on it cannot have undermined its ability to operate on that market. The allegedly disproportionate nature of the fines imposed on the other cartel participants, including NCHZ, cannot be invoked by the applicant, whose action against the contested decision can and does concern only the fine imposed on the applicant itself.
122    The Commission correctly contends that the applicant can only challenge the fine imposed on the applicant itself. However, in so far as the Commission is required to respect, inter alia, the principle of equal treatment when imposing a fine for infringement of Article 81 EC, it might be argued that if the Commission decides to reduce the fines imposed on the other cartel participants who are still active on the relevant market, so as to avoid a significant diminution in competition on that market, or even its elimination, it must apply the same reduction to another participant who has already exited that market and whose situation is objectively comparable, at least where – as in the applicant’s case – that other participant was fined on the basis that, at the material time, it was part of the same economic unit as a cartel participant who is still active on the market and who has been granted the reduction in the amount of the fine in question.
123    In those circumstances, the Court considers it appropriate to analyse the present plea without ruling on whether or not it is effective.
124    It must be observed that none of the arguments put forward by the applicant or anything on the file supports the conclusion that the present case is comparable to that referred to in point 61 and footnote 15 of the Opinion of Advocate General Geelhoed in Showa Denko v Commission, cited in paragraph 109 above. More generally, there is nothing in those arguments or documents to indicate that the fine imposed on the applicant is disproportionate.
125    While it is certainly true that, as recitals 12, 15, 21, 24, 33 and 36 to the contested decision show, Akzo Nobel’s worldwide turnover in the business year preceding the contested decision was the highest of all the cartel participants, the same is not true of its market share in the markets covered by the cartel. It is clear from the table in recital 46 that Akzo Nobel’s share of the calcium carbide powder market was between 20 and 25%, and its share of the calcium carbide granulates market, between 5 and 10%, whereas it was not active at all on the market for magnesium. On the two markets on which it was active, its market share was comparable to or even lower than that of other cartel participants. It is also apparent from that table that, on those two markets, other undertakings which had not participated in the cartel held market shares of between 15 and 20% and between 30 and 35%, respectively.
126    It must be added that, as is apparent from recital 44 to the contested decision, calcium carbide is explosive and therefore relatively difficult to transport. Consequently, it is more difficult to establish a dominant position or a monopoly on that market, since a producer would have to have several production sites distributed throughout the relevant territory in order to be able to dominate that market. Recital 44 to the contested decision refers to footnote 80, from which it is apparent that Akzo Nobel was the only producer based ‘in the Nordic area’ and supplied customers in Sweden, Norway and Finland. However, it was not the main supplier ‘on the continental market’.
127    That information, which the applicant does not contest, demonstrates that even in the event of the insolvency and withdrawal from the market of one or other cartel participant, it was unlikely that competition on those markets would be disturbed as a result of a dominant position or even a monopoly being established by Akzo Nobel.
128    Furthermore, none of the applicant’s arguments supports the conclusion that the level of the fines imposed on the cartel participants by the Commission was likely to force one or other of them to terminate its activities or to exit the market.
129    No pertinent argument in that regard can be derived from the mere fact that several cartel participants submitted – as they were entitled to do – a request for their inability to pay to be taken into account under point 35 of the Guidelines, particularly as, in response to those requests, the Commission noted in recitals 372, 373, 375, 376, 377 and 378 to the contested decision that, following analysis of the information provided by those submitting such requests, it had concluded that the amount of the fine would not irretrievably jeopardise their economic viability. With the exception of the Commission’s conclusion in response to the applicant’s own request (see recital 376 to the contested decision), challenged in the context of the sixth plea which will be examined below, the applicant did not rely on any specific argument or evidence that might call into question those findings in the contested decision.
130    With regard to the applications for interim measures made by two other cartel participants and invoked by the applicant, it is sufficient to note that neither of them was successful.
131    As regards NCHZ’s declaration of bankruptcy, invoked by the applicant, it must be noted that, as the case-law cited in paragraph 119 above shows, while a bankruptcy may adversely affect the financial interests of the owners or investors concerned, it does not necessarily mean that the undertaking in question will disappear from the relevant market. The undertaking may continue to exist as such, either where the bankrupt company is recapitalised, or where all the company’s assets – and thus the undertaking as such – are acquired by another entity.
132    Thus, while it cannot be ruled out that the bankruptcy of a company and its disappearance as a legal person may also lead to the demise of an undertaking as an economic unit, the latter eventuality cannot be deemed to have been established merely on account of the bankruptcy.
133    In the present case, the applicant has not invoked any argument or evidence to support the conclusion that NCHZ’s bankruptcy and its disappearance as a legal person will also mean an end to the economic activity that it was carrying on as an undertaking. Nor has it demonstrated that the Commission must have been aware of the likelihood of such an eventuality when it adopted the contested decision.
134    On the contrary, the applicant relied on a statement from the board of directors of NCHZ dated 17 September 2009, in which the board stated that the company’s bankruptcy proceedings were intended to ‘[protect] its assets with the aim to maintain continuous production process’ and gave an assurance that it was ‘able to hold its market position [and] ensure continuous production and sales’. That evidence corroborates the finding that NCHZ’s disappearance from the market was not imminent, in spite of the fine imposed on it.
135    Lastly, it must be noted that the applicant maintained in the reply that the amount of the fine imposed on it was disproportionate as it was far in excess of what would have been necessary to penalise its conduct. It submits that, owing to the choice of the 2007 business year as a basis for the calculation of the upper limit of the fine, which, it will be recalled, was criticised by the applicant in the second plea, the fine imposed on it corresponded to almost its entire 2008 turnover. According to the applicant, it is therefore inconceivable that it could pay such a fine without selling off its assets, particularly as it has already incurred a substantial loss on the sale of its shares in NCHZ.
136    It is not necessary to determine whether those arguments merely amplify those set out in the application, or whether they raise, in essence, a new plea that is inadmissible because it was put forward for the first time in the reply, without the conditions of the first subparagraph of Article 48(2) of the Rules of Procedure being satisfied, since it must be noted in any event that those arguments, which largely overlap with those put forward by the applicant in connection with the second plea, are unfounded and must be rejected.
137    As has been stated in connection with the second plea (see, in particular, paragraphs 104 to 107 above), the Commission correctly calculated the ceiling of the fine to be imposed on the applicant by taking into account the applicant’s turnover in 2007. 2008 did not represent a full and normal business year of economic activity for the applicant since it was then in the process of realising its assets and terminating its activities. That conclusion is also sufficient for the applicant’s argument that it would be unable to pay the fine without selling its assets to be rejected, since in any event the applicant had already sold its assets at the time when the fine was imposed. Lastly, it is evident from the case-law cited in paragraph 118 above that the Commission was not, in principle, obliged to take into account the loss which the applicant claimed to have suffered when it sold its shares in NCHZ, and the applicant did not rely on any specific evidence to justify a finding in its case that departs from that basic principle.
138    Having regard to all the foregoing considerations and taking into account also the case-law cited in paragraphs 118 and 119 above, it must be held that, contrary to the applicant’s submission, the Commission did not breach the principle of proportionality in its determination of the amount of the fine imposed on the applicant, and therefore the present plea for annulment of the contested decision on account of the disproportionate nature of that fine must be rejected. Moreover, the Court, in the exercise of its unlimited jurisdiction, considers the amount of the fine not to be disproportionate, in the sense that it is appropriate, on the one hand, to the circumstances of the case, owing to the gravity and duration of the infringement established by the Commission and, on the other, to the applicant’s situation, and dismisses the application for cancellation or a reduction of the fine.
The sixth plea in law, alleging a failure to state reasons or to state adequate reasons and infringement by the Commission of its own Guidelines in that it refused to take account of the applicant’s inability to pay
139    By the present plea, the applicant submits that, inasmuch as it contains a refusal of the applicant’s request pursuant to point 35 of the Guidelines for account to be taken in the determination of the amount of the fine of the applicant’s inability to pay, the contested decision is vitiated by a failure to state reasons or to state adequate reasons, and by an infringement of the Guidelines. The applicant therefore asks the Court to annul Article 2 of the operative part of the contested decision in so far as it relates to the applicant, or, in the alternative, in the exercise of the Court’s unlimited jurisdiction to reduce the fine to an appropriate amount, reflecting the applicant’s inability to pay.
140    Point 35 of the Guidelines is worded as follows:
‘In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’
141    The applicant submitted to the Commission a request that account be taken in the determination of the amount of the fine of the applicant’s inability to pay, but the request was refused in the following terms in recital 376 to the contested decision:
‘The shareholders of [the applicant] mandated the Board of Directors in 2007 to sell all assets with a view to terminating its activities and eventually distribute the income to its shareholders. Under these circumstances analysing the viability of the company and the prospective risk of bankruptcy is not meaningful. Therefore, based on the information presented by [the applicant], the remaining financial reserves were considered in comparison to the amount of the fine and it is concluded that [the applicant] is able to absorb the fine. Thus, the claim from [the applicant] on the inability to pay the fine is not accepted.’
142    It must be noted as a preliminary point that it has consistently been held that in adopting rules of conduct such as, in this instance, the Guidelines, and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (Dansk Rørindustri and Others v Commission, cited in paragraph 29 above, paragraph 211; Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 44; and Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II‑1255, paragraph 146).
143    In point 35 of the Guidelines, the Commission reserved to itself the possibility of taking account, on request, of the inability to pay of an undertaking fined pursuant to Article 23(2) of Regulation No 1/2003, if certain conditions set out in point 35 were satisfied. Those conditions include the condition that imposition of the fine as provided for in those guidelines would irretrievably jeopardise the economic viability of the undertaking concerned.
144    It is evident that there can be no question of the ‘economic viability’ of an undertaking that has itself decided to terminate its activities and to realise all its assets. Since it took the view that that was precisely the case so far as the applicant was concerned, the Commission stated in recital 376 to the contested decision that an analysis of the applicant’s viability was ‘not meaningful’ and, for that reason, refused the applicant’s request for point 35 of the Guidelines to be applied in its case.
145    The applicant takes issue with the Commission’s conclusion that the applicant was in the process of selling all its assets with a view to terminating its activities. However, it merely repeats the arguments already examined and rejected in connection with the second plea, and therefore that challenge must be rejected.
146    It follows from this that since one of the essential conditions for the application of point 35 of the Guidelines was not satisfied in the applicant’s case, the Commission was right in refusing the request for account to be taken of the applicant’s inability to pay. It must also be noted that, contrary to the applicant’s submission, its decision to sell its assets was entirely relevant to the consideration of that request, as is apparent from paragraph 144 above.
147    Furthermore, in so far as it refers to the applicant’s decision to sell its assets and, moreover, to terminate its activities – those matters being sufficient, as has already been noted, to justify the refusal of the applicant’s request – the contested decision is supported by a statement of reasons of the requisite legal standard, contrary to the applicant’s contention.
148    In the light of the foregoing considerations, the present plea must be rejected, and there is no need to consider the rest of the applicant’s arguments. Those relate to the Commission’s finding, also in recital 376 to the contested decision, that examination of the applicant’s financial reserves had revealed that the applicant could absorb the fine. That reason was included in the contested decision at most for the sake of completeness, and therefore the arguments which the applicant put forward to challenge it are ineffective (see, to that effect, Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 146, and judgment of 16 January 2008 in Case T‑306/05 Scippacerola and Terezakis v Commission, not published in the ECR, paragraph 145).
149    Moreover, the Court, in the exercise of its unlimited jurisdiction with regard to determination of the amount of the fine imposed on the applicant, considers that amount to be appropriate, on the one hand, to the circumstances of the case, owing to the gravity and duration of the infringement established by the Commission and, on the other, to the applicant’s ability to pay, and must therefore dismiss the application for cancellation or a reduction of the fine. Consequently, the action must be dismissed in its entirety.
Costs
150    Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders 1. garantovaná a.s. to pay the costs.
Czúcz
Labucka
Gratsias
Delivered in open court in Luxembourg on 12 December 2012.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
The first plea in law, alleging an error of law and of fact in the imputation to the applicant of NCHZ’s participation in the infringement at issue
The second, third and fourth pleas in law, relating to the use of the applicant’s 2007 turnover instead of its 2008 turnover to establish the 10% turnover ceiling provided for in Article 23(2) of Regulation No 1/2003
Relevant recitals to the contested decision
The fourth plea in law, alleging infringement of the obligation to state reasons as regards the question of the turnover to be taken into account in calculating the ceiling of the fine
The third plea in law, alleging infringement of the applicant’s right to be heard as regards the question of the turnover to be taken into account in calculating the ceiling of the fine
The second plea in law, alleging an error of law in that the Commission used the applicant’s 2007 turnover instead of its 2008 turnover to establish the 10% turnover ceiling provided for in Article 23(2) of Regulation No 1/2003
The fifth plea in law, alleging breach of the principle of proportionality, given the disproportionate nature of the amount of the fine imposed on the applicant
The sixth plea in law, alleging a failure to state reasons or to state adequate reasons and infringement by the Commission of its own Guidelines in that it refused to take account of the applicant’s inability to pay
Costs
* Language of the case: English.