JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
27 September 2012 (*)
(Competition – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Decision finding an infringement of Article 81 EC – Continuous nature of the infringement – Imputability of the unlawful conduct – Fines – Gravity and duration of the infringement)
In Case T‑348/06,
Total Nederland NV, established in Voorburg (Netherlands), represented by A. Vandencasteele, lawyer,
applicant,
v
European Commission, represented by A. Bouquet and F. Castillo de la Torre, acting as Agents,
defendant,
APPLICATION, principally, for partial annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands)), and, in the alternative, for reduction of the fine imposed on the applicant by that decision,
THE GENERAL COURT (Sixth Chamber),
composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearings on 7 June 2011 and 26 January 2012,
gives the following
Judgment
Facts
1        Total SA, the parent company of the Total group, holds 51.37% of Total Holdings Europe, of which, moreover, Elf Aquitaine owns 31.088% and Elf Exploration Production owns 17.537%. Elf Aquitaine is owned 99.46% by Total SA and is the 100% shareholder of Elf Exploration Production. Total Holdings Europe is thus indirectly owned 99.73% by Total SA. Total Holdings Europe itself owns 100% of Total Holdings Nederland BV, which owns 100% of the applicant, Total Nederland NV.
2        The Total group is active in particular in the research, extraction, processing and distribution of hydrocarbons and the trade in those substances and their by-products. The energy group emerged from a number of concentrations registered on 1 November 1999 and in June 2001 between Total, Fina and Elf. Fina has always operated on the market for the sale of bitumen in the Netherlands, Elf entered that market in 1997, and Total had never sold bitumen in the Netherlands before it merged with Fina in November 1999, then with Elf in 2000. During the period between 1 April 1994 and 15 April 2002, the Total group and its predecessors had a presence on the Netherlands bitumen market until 1 November 1999 through Fina Nederland BV and Elf Oil BV, then, until 31 December 2000, through TotalFina Nederland NV and Elf Oil BV and, finally, through TotalFinaElf Nederland NV, which became Total Nederland on 30 June 2003.
3        By letter of 20 June 2002, British Petroleum plc (‘BP’) informed the Commission of the European Communities of the presumed existence of a cartel with regard to the supply of road pavement bitumen in the Netherlands and submitted a request for immunity from fines in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).
4        On 1 and 2 October 2002, the Commission carried out surprise inspections, in particular at the Belgian and Netherlands premises of TotalFinaElf Nederland NV and TotalFinaElf België NV. The Commission sent requests for information to several companies, including the applicant on 30 June 2003 and 10 February and 5 April 2004 and Total on 10 February and 5 April 2004. The applicant replied to all of those requests on 13 September 2003 and 2 March and 26 April 2004.
5        On 18 October 2004, the Commission initiated a proceeding and adopted a statement of objections, which was sent on 19 October 2004 to several companies, including the applicant and Total.
6        Following the hearing of the companies concerned, the Commission adopted Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands), ‘the contested decision’) a summary of which was published in the Official Journal of the European Union of 28 July 2007 (OJ 2007 L 196, p. 40), and which was notified to the applicant on 26 November 2006.
7        The Commission stated, in the contested decision, that the companies to which it was addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for the periods indicated, the gross price for sales and purchases of road pavement bitumen in the Netherlands (‘the gross price’), a uniform rebate on the gross price for participating road builders (‘the W5’) and a smaller maximum rebate on the gross price for other road builders (‘the small builders’).
8        The applicant and Total were found guilty of that infringement, respectively, for the periods from 1 April 1994 to 15 April 2002 and from 1 November 1999 (the date on which Fina was acquired by Total) to 15 April 2002. A fine of EUR 20.25 million was imposed on the applicant, for EUR 13.5 million of which Total is jointly and severally liable.
9        As regards the calculation of the amount of the fines, the Commission described the infringement as very serious, given its nature, even though the relevant geographic market was limited (recital 316 of the contested decision).
10      In order to take account of the specific weight of the unlawful conduct of each of the undertakings involved in the cartel, and of its real impact on competition, the Commission made a distinction between the undertakings concerned according to their relative importance on the market concerned, measured by their market share, and grouped them into six categories.
11      On this basis, the Commission applied a starting amount of EUR 7.5 million for Total and the applicant (recital 322 of the contested decision), to which it applied a multiplier of 1.5, intended to ensure the deterrent effect of the fine, taking account of the Total group’s size and turnover (recital 323 of the contested decision).
12      As regards the duration of the infringement, the Commission took as a basis a period of eight years for the applicant and two years and five months for Total, increasing the starting amount by 80% and 20% respectively (recital 334 of the contested decision). The basic amount of the fine, determined according to the gravity and duration of the infringement, was therefore fixed at EUR 20.25 million for the applicant, for EUR 13.5 million of which Total was jointly and severally liable (recital 335 of the contested decision).
13      The Commission did not find any aggravating circumstances with regard to the applicant and rejected its request that its effective cooperation, namely its responses to the requests for information and its acknowledgement of the facts, should be regarded as an attenuating circumstance (recitals 367 to 370 of the contested decision).
14      The Commission did not apply the Leniency Notice, taking the view that the information provided by the applicant did not contain significant added value (recital 388 of the contested decision).
Procedure and forms of order sought
15      By application lodged at the Registry of the Court on 4 December 2006, the applicant brought the present action.
16      Acting upon a report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, put written questions to the parties. The parties replied to those questions within the prescribed period.
17      On 20 April 2011, the applicant requested that this case be joined with Cases T‑343/06, T‑344/06, T‑347/06, T‑351/06 to T‑362/06 and T‑370/06. By decision of the President of the Sixth Chamber of the Court, it was decided on 17 May 2011 not to accede to that request.
18      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 7 June 2011.
19      As a member of the Sixth Chamber was unable to sit, the President of the General Court designated himself to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.
20      By order of 18 November 2011, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.
21      The parties submitted oral argument at a further hearing on 26 January 2012.
22      The applicant claims that the Court should:
–        annul Article 1 of the contested decision in so far as it finds the existence of a single continuous infringement from 1994 to 2002 rather than from 1996 to 2002;
–        annul Article 2 of the contested decision in so far as it fails to take into account the shorter duration of the infringement, fails to properly assess the gravity of the infringement, fails to acknowledge the existence of mitigating circumstances and takes into account the turnover of Total to ensure the deterrent effect of the fine;
–        reduce the amount of the fine that it has been ordered to pay by the contested decision so as to properly reflect the nature of the applicant’s involvement in the practice;
–        and order the Commission to pay the costs.
23      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
1.     The claims for annulment of Article 1 of the contested decision
Arguments of the parties
24      The applicant adduces a single plea in law in support of its claims for annulment of Article 1 of the contested decision, by which the applicant alleges that the Commission made errors of assessment and violated its rights of defence in considering that the agreements concluded in 1994 had been maintained in 1995.
25      The applicant bases its statement that the Commission wrongly found that it had participated in a continuous infringement from 1994 to 2002 on three parts. In the first place, it submits that the Commission failed to take account of evidence showing that the 1994 agreements were entered into only for one year and broke off before their term. In the second place, it submits that the Commission failed to discharge its burden of proof by relying on a lack of comments from addressees of the statement of objections about the interruption of the infringement in 1995. In the third place, it complains that the Commission erred in its assessment of the evidential value of the elements on which the latter based its case in stating that the agreements concluded in 1994 were applied in 1995.
26      First, the applicant submits that a number of documents, in particular a note of 8 July 1994 from Hollandsche Beton Groep (‘HBG’), demonstrate that the 1994 agreements were entered into for one year only and that, in any event, they were not complied with for all of that year because of a collective breach of their terms by bitumen suppliers (‘the suppliers’). The applicant maintains that the Commission cannot submit at the judicial stage of the proceedings that the 1994 agreements were amended twice that year when it did not mention that point in the statement of objections or the contested decision.
27      Second, the applicant submits that, in confining itself to relying on statements from certain suppliers which mention no interruption in the cartel, the Commission has failed to establish the continuous nature of the infringement. Thus, the Commission acknowledged that it did not have sufficient evidence for 1993, and the same conclusion should have been drawn for 1994 and 1995. It submits lastly that, as the 1994 agreements had been broken off, it was for the Commission to prove the renewal of the cartel in 1995, according to the same standard of proof as at the start of a cartel, and that the case-law on cartels which have been interrupted was not applicable in the present case.
28      Third, the applicant submits that the Commission made an error in assessing the evidence available to it when it found that the part of the agreements relating to the special rebate granted to the W5 continued to apply in 1995, while two documents show that, in 1995, the suppliers did not grant the same rebate to the various W5 members. The applicant submits that, in the light of those two notes, the Commission ought to have found that, in 1995, the suppliers did not apply a uniform rebate to the members of the W5, since certain members benefited from a ‘normal’ rebate of 50 Dutch guilders (NLG) per ton, whilst for other members that rebate amounted to NLG 75 per ton, and that that factor made it possible to confirm that the cartel set up in 1994 had ended. The applicant takes the view moreover that, in view of the market conditions, the W5 was merely trying to preserve the rebate that it had obtained the previous year, even in the absence of a cartel. It submits moreover that the contested decision implies that the negotiations on individual additional rebates did not begin at the start of the cartel. Lastly, it alleges that the Commission seeks to rely on the statement of 9 October 2003 from an employee of Kuwait Petroleum who acknowledged the continuous nature of the cartel since 1994, when that statement contains numerous inconsistencies and is therefore not credible.
29      The applicant submits in conclusion that the Commission was not entitled to find that it committed a continuous infringement from 1994. The applicant concludes that the 1994 agreements are covered by the statute of limitation and that the period in respect of which the fine was calculated is wrong.
30      The Commission challenges all the arguments put forward by the applicant.
Findings of the Court
31      In order to examine the first plea put forward by the applicant, it is necessary, as a preliminary point, to recall the main principles governing the burden of proving the existence of an infringement of Article 81 EC.
32      In accordance with Article 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), ‘[i]n any national or Community proceedings for the application of Articles 81 [EC] and 82 [EC], the burden of proving an infringement of Article 81(1) [EC] or of Article 82 [EC] shall rest on the party or the authority alleging the infringement’. Thus, as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement, and the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraphs 173, 179 and 180 and the case-law cited). Lastly, as anti-competitive agreements are known to be prohibited, fragmentary and sparse evidence can be supplemented by inferences which allow the relevant circumstances to be reconstituted and the existence of an anti‑competitive practice or agreement may be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57).
33      In proceedings for annulment brought under Article 230 EC, all that is required of the Courts of the European Union is to verify the legality of the contested measure. Thus, the role of a Court hearing an application for annulment of a Commission decision finding the existence of an infringement of the competition rules is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement. Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point (see JFE Engineering and Others v Commission, paragraph 32 above, paragraphs 174, 175 and 177 and the case-law cited).
34      First, as regards the manifest error of assessment of evidence relating to the conclusion of the 1994 agreements for one year only, it is apparent from the contested decision (recitals 93 to 97 of the contested decision) that the Commission relied on a number of elements to find that the cartel had been set up for an indefinite duration on 1 April 1994. In the first place, the Commission used an HBG note of 28 March 1994 indicating that agreements were concluded between Shell Nederland Verkoopmaatschappij BV (‘SNV’) and Koninklijke Wegenbouw Stevin BV (‘KWS’), the two leaders on the market, on behalf of all the cartel participants, setting, from 1 April 1994, the gross price, the rebate granted to the W5 and the maximum rebate granted to the small builders. In the second place, the Commission relied on an HBG note of 8 July 1994 referring to the decision of the suppliers to increase the gross price, contrary to the agreements concluded, and raising the possibility of compensating the increased costs for the W5. However, that note makes no mention of a termination of those agreements. In the third place, the Commission used KWS’s reply to the statement of objections, confirming the principal cartel mechanism, which was structured around the three key elements, namely the fixing of the gross price, the minimum rebate granted to the W5 and the maximum rebate granted to the small builders.
35      Those various elements are sufficient to establish the existence and the main features of the 1994 agreements. The fact that the gross price was modified during 1994 does not suffice to call into question either the existence of the agreements or the mechanisms by which they operated. The Courts of the European Union have indeed already held that it cannot be inferred merely from disagreements or disputes between cartel participants that the cartel had ended (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraphs 127 to 137). In the present case, the applicant did not moreover provide any evidence capable of establishing that the agreements ended during that year. Lastly, the HBG note of 8 July 1994 shows that the W5 envisaged finding a solution to the problem arising from the suppliers’ unilateral decision to increase the gross price within the cartel. The Commission was therefore right to find that the cartel was set up for an indefinite duration on 1 April 1994.
36      That view is confirmed by the information relating to the manner in which the cartel operated during 1995. The Commission had in its possession two documents contemporaneous with the infringement relating to the application of a special rebate to the W5 in 1995. Thus, the HBG note of 7 July 1995 states that Kuwait Petroleum and Wintershall AG (‘Wintershall’) offered an extra rebate to HBG in addition to the ‘normal rebate’ and an internal Wintershall report of 4 March 1996, relating to a visit to Heijmans mentions the ‘rebate amount owed’ to that company for 1995 (recital 98 of the contested decision). As the Commission rightly pointed out in the contested decision, the very existence of the special rebate to the W5 is a sufficient basis for concluding that the cartel continued in 1995, since the suppliers had no interest in granting a larger rebate to certain builders without receiving any compensation in return.
37      In any event, according to the case-law, Article 81 EC is also applicable to agreements which are no longer in force but which continue to produce their effects after they have formally ceased to be in force (Case T‑59/99 Ventouris v Commission [2003] ECR II‑5257, paragraph 182).
38      Thus, taking account of the evidence concerning 1995 as a whole, the lack of detailed, express written evidence of the existence of the cartel in 1995 cannot suffice to conclude that it ceased at the end of 1994.
39      The applicant moreover alleges that the Commission expounded a new theory at the judicial stage of the proceedings, according to which the agreements concluded in 1994 were amended on two occasions during that year, whereas the Commission had never mentioned that theory in the statement of objections or the contested decision. It is true that, since, in proceedings for annulment brought under Article 230 EC, all that is required of the Courts of the European Union is to verify the legality of the contested measure, the Commission cannot, in support of the contested decision, produce new incriminating evidence not contained in the decision (JFE Engineering and Others v Commission, paragraph 32 above, paragraphs 174 and 176). However, it is apparent from the contested decision that the Commission had already stated that the agreements concluded in 1994 were ‘identical in nature to the ones concluded later, in the sense that the agreements concerned the bitumen gross price level in the Netherlands, the rebates to be granted to the W5 road builders and the smaller rebates to be granted to non-W5 road builders’ (recital 95 of the contested decision), after reproducing an excerpt from the HBG note of 8 July 1994 in which mention was made, unlike in the agreements of March 1994, of the planned increase in the gross price. The applicant cannot therefore allege that it was only at the judicial stage of the proceedings that the Commission expounded a new theory relating to the amendment of the agreements during 1994.
40      The Court must therefore reject the first part of that plea.
41      Second, as regards the criticism based on the burden of proof and infringement of the rights of the defence, the applicant submits that, by relying on a lack of comments from addressees of the statement of objections about the interruption of the infringement in 1995, the Commission did not comply with the applicable rules in relation to proving an infringement and therefore infringed its rights of defence. Those arguments essentially seek to show that the Commission failed to adduce proof of the continuous nature of the infringement in 1995. The Court must therefore assess whether the Commission did adduce such proof.
42      According to the case‑law, with respect to the alleged duration of an infringement, the principle of legal certainty requires that, if there is no evidence directly establishing the duration of the infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79). However, the Court of Justice has subsequently made it clear that that case‑law does not apply in the case of an overall agreement extending over several years and involving different actions forming, because of their identical object, part of an ‘overall plan’ distorting competition within the common market (Aalborg Portland and Others v Commission, paragraph 32 above, paragraphs 258 to 260). The Court of Justice has subsequently confirmed that, in the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement. Thus, the fact that the Commission did not adduce proof of the existence of a continuous infringement for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia (Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 169).
43      It is therefore necessary to examine the evidence used by the Commission in order to substantiate the continuous nature of the infringement alleged against the applicant between 1994 and 1996.
44      It is apparent from the contested decision that the Commission relied on five factors in finding that the cartel which began in 1994 continued in 1995 (recitals 98 and 175 to 178 of the contested decision). In the first place, three suppliers (statement of a Kuwait Petroleum employee of 9 October 2003, Nynas’s reply of 2 October 2003 to a request for information and BP’s statement of 12 July 2002) indicated that the cartel began in April 1994 and none of those three suppliers mentioned an interruption in 1995. In the second place, in its corporate statement of 10 October 2003, SNV stated that, after 1993, the W5 had found a different method to avoid disruptions in the road construction market, by organising meetings with the suppliers (recital 91 of the contested decision). In the third place, a Kuwait Petroleum employee expressly acknowledged the continuous nature of the infringement from 1994 to 2002 in his oral statement of 9 October 2003. In the fourth place, several documents seized by the Commission provide confirmation that the systems of rebates and sanctions operated in 1995: an internal HBG note of 7 July 1995 thus states that Kuwait Petroleum and Wintershall offered an extra rebate to HBG, in addition to the ‘normal rebate’ and an internal Wintershall report of 4 March 1996 relating to a visit to Heijmans mentions the rebate amount owed to that company (recital 98 of the contested decision). In addition, that Wintershall report states that, in 1995, it was found that the suppliers had granted an undue rebate to the small builders (recital 82 of the contested decision). In the fifth place, internal SNV notes of 6 and 9 February 1995 mention an attempt by SNV to end its participation in the cartel going back to 1992, which did not however succeed, and mention the conclusion of price agreements between the W5 and the suppliers, to the detriment of contracting authorities and non‑W5 undertakings. The note of 9 February 1995 envisages the various options which could enable SNV to withdraw from that cartel, whilst noting the difficulties that such a decision would involve.
45      The Court therefore concludes that the Commission was entitled to find, without making an error of assessment and without infringing the rights of the defence, that it had in its possession evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement had continued uninterruptedly between 1994 and 1996. The fact that the Commission did not adduce direct evidence that new agreements were concluded in 1995 does not preclude a finding that the infringement was continued during that year, provided that such a finding is based on objective and consistent indicia, which is the case here. Moreover, it should be noted that the lack of comments from addressees of the statement of objections about the interruption of the infringement in 1995 is only one of the elements used by the Commission in finding that the cartel which began in 1994 continued in 1995.
46      Consequently, the Court considers that the Commission did not fail to discharge its burden of proving the continuous nature of the infringement in 1995. The second part of the first plea must therefore be rejected.
47      Third, as regards the criticisms alleging errors of assessment relating to certain items of evidence, the Court would point out as a preliminary point that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value and that, in order to assess the evidential value of a document, regard should be had first and foremost to the credibility of the account it contains, in the light, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491 (‘Cement’), paragraph 1838). In the present case, as the Commission observes, although the statement of the Kuwait Petroleum employee of 9 October 2003 made in the context of its leniency application contains certain points which that employee subsequently revised as regards the participation in the cartel of ExxonMobil, a supplier on which the Commission did not impose a fine, it none the less proved to be correct on other points, in particular on events after 1994, the time when that employee joined the bitumen sector in the Netherlands, such as, for example, the list of participants in the cartel meetings, the location of those meetings or their content (recitals 51, 57, 61 and 69 of the contested decision). The Court therefore considers that, on condition that it is corroborated by other indicia, that statement constitutes reliable evidence of the continuous nature of the cartel.
48      The applicant also alleges that the Commission misinterpreted the two documents mentioned in recital 98 of the contested decision.
49      The Commission’s interpretation of those documents contemporaneous with the infringement is however correct. The Commission indicated in the contested decision that a number of documents demonstrate that the rebate granted to the W5 was only a basic rebate, which could be increased depending on the size of a project or the total purchasing volume (recital 97 of the contested decision, which is based on KWS’s reply to the statement of objections) and that, in the present case, the HBG note of 7 July 1995 related to a larger project, which explains the extra rebate granted. That HBG note specifies moreover that, until that date, no other company had asked for an extra reduction and that the suppliers had promised that they would not grant any other reductions.
50      The Court therefore considers that the Commission did not make an error of assessment in finding that the part of the agreements relating to the rebate granted to the W5 continued to apply during 1995, even though two W5 members had received different rebates. The third part of the first plea must therefore be rejected.
51      It follows from all the foregoing that the infringement committed by the applicant was continuous from 1 April 1994 until 15 April 2002 and that the limitation period therefore started to run only from 16 April 2002.
52      Accordingly, the claims for annulment of Article 1 of the contested decision must be rejected.
2.     The claims for annulment of Article 2 of the contested decision
53      The applicant adduces three pleas in support of its claims for annulment of Article 2 of the contested decision. The first plea alleges the incorrect assessment of the gravity of the infringement. By the second plea, the applicant claims that the Commission made a manifest error of assessment by failing to take account of a mitigating circumstance when determining the amount of the fine. Finally, the third plea is intended to show that the Commission made a manifest error of assessment and an error in law in its application of a multiplier as a deterrent.
The incorrect assessment of the gravity of the infringement
The nature of the infringement
–       Arguments of the parties
54      The applicant submits that, by describing the agreements in question as a particularly serious infringement (recitals 142, 152 and 312 of the contested decision), the Commission violated its right to a hearing, did not adequately state reasons for its decision and made a wrong assessment of certain facts. Thus it complains that the Commission modified its assessment of the essential characteristics of the agreements between the statement of objections and the contested decision, in which it considered for the first time that the agreements had the effect of fixing selling prices and making them uniform.
55      The applicant submits that, by making such a modification, the Commission prevented it from making known its views on that new assessment of the facts. It also complains that the Commission, in the contested decision, failed to state the reasons for making that modification. Lastly, it submits that that new assessment does not withstand an examination of the facts, since, according to the Commission’s own calculations, in the majority of cases, the rebate actually granted to the W5 did not correspond to the agreements and diverged sharply from one supplier to another. Thus the Commission could not state that the agreements had the effect of fixing selling prices.
56      The Commission rejects the applicant’s arguments.
–       Findings of the Court
57      First of all, it is necessary to determine whether classification of an infringement as very serious can be limited only to agreements fixing a uniform selling price, as the applicant seems to submit.
58      According to Section 1 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’), the basic amount of the fine is determined according to the gravity and duration of the infringement, and, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. The Guidelines therefore draw a distinction between minor infringements (for example, trade restrictions, usually of a vertical nature, but with a limited market impact), serious infringements (more often than not, horizontal or vertical restrictions, more rigorously applied, and with a wider impact on the common market), and very serious infringements (generally horizontal restrictions such as price cartels, market-sharing quotas or other practices which jeopardize the proper functioning of the single market).
59      It must be observed that, in line with the settled case‑law, the gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, in respect of which the Commission has a broad discretion (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 241, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 43; Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 153). Moreover, the Courts of the European Union have held that, when determining the amount of fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the infringements, such as the role played by each of the parties to those infringements and the threat that infringements of that type pose to the objectives of the European Union (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 120 and 129, and Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraph 52; Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraphs 168 to 183). Where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them (Case C‑51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 110, and Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraph 207).
60      The Courts of the European Union have also recognised that horizontal price agreements or agreements aimed in particular at sharing customers or partitioning the common market may be classified as inherently very serious (Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 109; Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 136; Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 147, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 279). Such agreements may, solely on account of their nature, be classified as very serious, without it being necessary for such conduct to cover a particular geographical area or have a particular impact (Brasserie nationale and Others v Commission, paragraph 59 above, paragraph 178). Furthermore, a horizontal agreement covering the entire territory of a Member State and with the object both of dividing the market and of partitioning the common market cannot be classified as minor within the meaning of the Guidelines (Brasserie nationale and Others v Commission, paragraph 59 above, paragraph 181).
61      It follows from the aforementioned case-law that classification of an infringement as inherently very serious is not limited to cartels which fix a uniform sale price. An agreement aimed at setting a fixed basic price for certain customers and charging a systematically higher price to customers which are not members of the cartel also constitutes one of the most serious forms of damage to competition and therefore falls within that category of infringements which are inherently very serious.
62      In the present case, the Commission was right to consider, in recitals 312 to 317 of the contested decision, that the applicant had committed a very serious infringement of Article 81(1) EC. It stated that an infringement consisting of the direct or indirect fixing of selling and purchase prices and the application of dissimilar conditions to equivalent transactions with other parties, thereby placing them at a competitive disadvantage, is amongst the most serious types of infringements by their nature.
63      The applicant, which complains that the Commission considered that the agreements had the effect of fixing selling prices and making them uniform, claims inter alia that, in the majority of cases, the rebate actually granted to the W5 did not correspond to the agreements and diverged sharply from one supplier to another. However, the Court would point out that the Commission, which in particular stated, in recital 152 of the contested decision, that individual volume or project rebates were granted on top of the W5 rebate, did not take the view that the sale and purchase prices of road pavement bitumen were uniform.
64      Moreover, it is necessary to examine whether the Commission did in fact modify its position regarding the nature of the infringement between the statement of objections and the contested decision.
65      It should be borne in mind in this respect that, although the statement of objections must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings, that may be done summarily and that the decision is not necessarily required to be a replica of the statement of objections (Musique Diffusion française and Others v Commission, paragraph 59 above, paragraph 14), since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature.
66      In the present case, in the statement of objections, the Commission stated that the cartel consisted in fixing gross prices, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders (see in particular points 250 to 252 and 264 of the statement of objections). In the contested decision, the Commission found that the infringement consisted of the direct or indirect fixing of gross prices and the application of dissimilar conditions to equivalent transactions with other parties that were not members of the cartel, thereby placing them at a competitive disadvantage, and that it was therefore amongst the most serious types of infringements by their nature (recital 312 of the contested decision). However, it did not find that the sale and purchasing prices of road pavement bitumen were uniform. In recital 142 of the contested decision, the Commission merely described the cartel meetings which consisted in agreeing on ‘the gross price of road pavement bitumen in the Netherlands, a uniform rebate on the gross price for the W5 road builders and a smaller maximum rebate on the gross price for other road builders’. Similarly, in recital 152 of the contested decision, whilst it is true that the Commission drew attention to the fact it was an advantage for the W5 that the rebate granted was uniform, the Commission none the less stated that ‘it did not completely eliminate competition because of individual volume or project rebates that they received on top of the W5 rebate’. Accordingly, the Commission did not infringe the applicant’s right to be heard or its obligation to state reasons in that regard.
67      The first part of this plea must therefore be rejected.
The actual impact of the cartel on the market
–       Arguments of the parties
68      The applicant complains moreover that the Commission failed to take account of the impact of the cartel on the market and the degree to which it was implemented in determining the gravity of the infringement, contrary to the requirement imposed on it by the case-law (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 189). It submits that the Commission should thus have taken account of the effective non-implementation of the agreements as it had provided it with evidence that the rebate granted to the W5 diverged in practice from the basic rebate under the agreements and that it had, on the contrary, granted higher rebates to the small builders. Moreover, the Commission cannot argue that the effect of the impact on the market was not measurable when it made calculations which showed large deviations in prices from the agreements.
69      The Commission rejects all the applicant’s arguments.
–       Findings of the Court
70      In recital 314 of the contested decision, the Commission stated that the determination of the gravity of the infringement and of the amount of the fine was not dependent on the impact on the market of the cartel. The Commission stated that it was not possible to measure the actual impact on the market of the cartel, due to insufficient information on bitumen price developments in the absence of the arrangements, but that it could confine itself to estimates of the probability of the effects of the cartel. To that end, the Commission stated that the arrangements concluded were effectively implemented; that implementation included the application of a preferential rebate solely to W5 members and the application of a sanctions mechanism in the event of failure to comply with the agreements, thus creating artificial market conditions. The Commission stated moreover that the gross price was higher than that in neighbouring countries and that the special rebate granted to the W5 could be a decisive factor in terms of obtaining public works contracts.
71      According to Section 1 of the Guidelines, the basic amount of the fine is determined ‘according to the gravity and duration of the infringement, [and] [i]n assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market’. The Courts of the European Union have confirmed that the Commission is not required to establish the actual impact of the infringement on the market, since the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel is not a decisive factor for determining the level of fines (see, to that effect, Musique Diffusion française and Others v Commission, paragraph 59 above, paragraphs 120 and 129, and Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraphs 68 to 77; judgment of 19 May 2010 in Case T‑25/05 KME Germany and Others v Commission, not published in the ECR, paragraph 82 and the case-law cited). The Court of Justice has thus stated that it is apparent from the Guidelines that the very nature of the infringement may suffice for it to be classified as ‘very serious’, regardless of its actual impact on the market and its geographic extent (Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 103). That conclusion is supported by the fact that, whilst the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an impact or that there be effects in a particular geographic area (Groupe Danone v Commission, paragraph 60 above, paragraph 150, and KME Germany and Others v Commission, paragraph 83). The Court of Justice has also stated that it is apparent from the first paragraph of Section 1A of the Guidelines that that impact is to be taken into account only where this can be measured (Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraph 125, and Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑6525, paragraph 74).
72      In the present case, it is apparent from paragraphs 57 to 62 above that the Commission was right to classify the infringement as very serious by reference to its nature. In any event, since the Commission specified in the contested decision that the actual impact of the infringement could not be measured (recitals 314 and 316 of the contested decision), it was not required to carry out an assessment of that actual impact on the market in order to classify the infringement as very serious.
73      Furthermore, the Court must reject the applicant’s argument relating to the case-law arising from Cheil Jedang v Commission, paragraph 68 above, since, in that case, the Court stated merely that it is necessary to distinguish the assessment of the actual impact of an infringement on the market for the purposes of determining its gravity (first paragraph of Section 1A of the Guidelines) – in the course of which it is necessary to consider the effects of the infringement as a whole rather than the actual conduct of each undertaking – from the assessment of the individual conduct of each undertaking for the purposes of assessing any aggravating or attenuating circumstances (Sections 2 and 3 of the Guidelines), in the course of which it is necessary, in accordance with the principle that penalties must fit the offence, to examine the relative gravity of the undertaking’s own involvement in the infringement.
74      Lastly, according to the case-law, while it is not necessary for the infringement to have an actual impact in order for it to be classified as very serious where an agreement has an anti-competitive object, the additional consideration of that factor allows the Commission to increase the starting amount of the fine beyond the minimum likely amount of EUR 20 million fixed by the Guidelines, without any cap other than the maximum limit of 10% of the total turnover of the undertaking concerned in the preceding business year laid down, in respect of the total amount of the fine, in Article 23(2) of Regulation No 1/2003. Accordingly, the Commission must, where it considers it appropriate, for the purposes of calculating the fine, to take that optional element – the actual impact of the infringement on the market – into account, provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market (Prym and Prym Consumer v Commission, paragraph 71 above, paragraphs 81 and 82). In the present case, it is apparent from the contested decision that the Commission chose not to take account of the impact of the cartel on the market, taking the view that it could not be measured, when determining the starting amount of the applicant’s fine, which is in any event lower than the amount of EUR 20 million indicated in the Guidelines for this type of infringement. The Commission was not therefore required to adduce evidence with which to assess the actual impact that the infringement may have had on competition in that market or to establish that it was not able to assess that impact.
75      The second part of this plea must therefore be rejected, as must the plea in its entirety.
The failure to take account of mitigating circumstances
Arguments of the parties
76      The applicant complains that the Commission failed to take account of the mitigating circumstances adduced in response to the statement of objections. It submits that the Commission should have taken account of the deviations between the prices it applied and the rebates given within the cartel, which seriously disturbed the functioning of the cartel, such that the W5 tried to impose sanctions on it. The prices it applied thus had a minimum anti-competitive effect. It asserts moreover that various elements indicate that the suppliers managed to hide from the W5 the exact rebate they were granting to the small builders. Lastly, it states that the Commission itself recognised in the statement of objections that the rebate that it granted to the W5 between 1998 and 2002 corresponded to that set out in the agreements only in 47% of cases (point 181 of the statement of objections).
77      The Commission contends that the applicant was not in a position to benefit form any mitigating circumstance.
Findings of the Court
78      According to the second indent of Section 3 of the Guidelines, the Commission may reduce the basic amount of the fine where there are attenuating circumstances such as non‑implementation in practice of the offending agreements or practices. It is settled case-law that, in order to assess whether an undertaking may benefit from the attenuating circumstance that the agreements were not implemented in practice, it is necessary to ascertain whether the circumstances referred to by the applicant are such as to establish that, during the period in which it was a party to the offending agreements, it actually declined to apply them by adopting competitive conduct on the market (Cement, paragraph 47 above, paragraphs 4872 to 4874, and Cheil Jedang v Commission, paragraph 68 above, paragraph 192).
79      In the first place, the Court would however point out that it is apparent from the contested decision that the agreements in question included several features, since their purpose was, first, to fix the gross price and, second, to apply, with respect to all the builders, by means of the minimum rebate mechanism for the W5 and the maximum rebate mechanism for the small builders, dissimilar conditions to equivalent transactions, thereby placing them at a competitive disadvantage. Accordingly, the mere fact that variable rebates were granted to W5 members and the small builders does not in itself suffice to establish that the applicant declined to apply the agreements in question and adopted competitive conduct on the market. The applicant does not dispute having complied with the part of the agreements relating to the changes in the gross price (see points 178 to 180 of the statement of objections), thereby demonstrating its unwillingness to actually decline to apply the price agreements.
80      In the second place, the applicant failed to adduce any evidence establishing that it did in fact grant a larger rebate to small builders. It merely provided a table, which it drew up after the period of infringement, relating to the net prices of bitumen charged between 1995 and 2002 to various companies, including certain W5 members. That table shows prices which vary from one company to another and from one year to another, it having not been possible to reconstitute some of the information, but does not provide any objective evidence that makes it possible to corroborate that information. It follows that, on the basis of that table alone, it is not possible to grant the applicant the benefit of an attenuating circumstance which the Commission was therefore correct to refuse.
81      In the third place, it should be emphasised that the applicant was not the only supplier which granted a variable rebate to the various W5 members (see point 181 of the statement of objections) and that the Commission in any event recognised that the agreements did not completely eliminate competition because of individual volume or project rebates that the W5 received on top of the special rebate (see paragraph 66 above). Accordingly, the differences observed in the rebate granted to the members of the W5 cannot be regarded as significant and as reflecting genuinely independent and competitive conduct on the market.
82      In the fourth place, the Court shares the Commission’s view that the existence of a sanctions mechanism in the event of failure to comply with the agreements and the fact that the applicant agreed to abide by that mechanism demonstrates that it felt bound by those agreements.
83      It follows that from all those considerations that the applicant has failed to show that it did not implement the agreements in practice. A difference in the degree to which it implemented the agreements cannot be regarded as non‑implementation in practice of the agreements (Cheil Jedang v Commission, paragraph 68 above, paragraphs 195 to 199). Accordingly, the Commission was entitled, without making a manifest error of assessment, not to grant the applicant the benefit of any attenuating circumstance in respect of the non-implementation in practice of the agreements.
84      This plea must therefore be rejected.
The application of the wrong deterrent multiplier
Arguments of the parties
85      The applicant submits that, in increasing the starting amount of its fine by 50% by applying a deterrent multiplier, the Commission has wrongly taken as a basis the turnover of the parent company Total, which it has held liable for the infringement.
86      It points out that the Courts of the European Union prohibit holding a group jointly and severally liable for the conduct of a single one of its companies according to the principle that penalties must fit the offence (Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887). In addition, the Courts of the European Union allow the conduct of a subsidiary to be attributed to the parent company only where the subsidiary did not decide independently upon its own course of action on the market but carried out, in all material respects, the instructions given by the parent company (Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 133). In Stora Kopparbergs Bergslags v Commission, paragraph 71 above, the Court of Justice thus accepted that liability for the infringement committed by the subsidiary should be attributed to the parent company as the latter had not disputed that it was in a position to exert a decisive influence on its subsidiary’s policy (Stora Kopparbergs Bergslags, paragraph 71 above, paragraphs 28 and 29). The mere fact of a parent company’s 100% shareholding in a subsidiary is not in itself sufficient to attribute liability to the parent for the conduct of that subsidiary. Any finding to the contrary would affect the rights of defence by infringing the principle of the presumption of innocence and the obligation on the Commission to establish the individual liability of any company before imposing a penalty on it.
87      The applicant submits that, in the present case, it is for the Commission to prove the participation of Total in the infringement and that it has not done so. Thus the sole responsibility of Total for overall strategy and investment cannot suffice to demonstrate such involvement in the cartel, as all parent companies perform that type of function. The Commission ought, by contrast, to have demonstrated the applicant’s lack of strategic independence on the market in relation to the infringement. Moreover, the applicant takes issue with the point relating to the personal link between itself and its parent company, since the members of the ‘Management Committee’ of Total had no reason to broach the question of bitumen sales in the Netherlands with one of its employees, as that issue did not fall within the committee’s terms of reference. Lastly, it points out that its very low turnover from bitumen as a proportion of the turnover of its parent company and of the Total group shows that it was not possible that the parent company was directly involved in the infringement.
88      In reply to a written question put by the Court relating to the consequences that the applicant drew from the judgments in Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, and Case C‑90/09 P General Química and Others v Commission [2011] ECR I‑1, it maintained the arguments put forward in its pleadings and submitted that the judgment in General Quimica and Others v Commission could be interpreted as overruling the case‑law arising from the judgment in Akzo Nobel and Others v Commission in that it enables a parent company to rebut the presumption that it exercises decisive influence over its subsidiary by establishing that it did not participate either directly or indirectly in the unlawful practice of its subsidiary.
89      The Commission disputes all the applicant’s arguments. The Commission points out, moreover, that, although Total did not represent the applicant during the administrative procedure, it should none the less be noted that the applicant replied to all the requests for information addressed to Total, in its name.
Findings of the Court
90      It is apparent from recitals 239 to 251 of the contested decision that the Commission considered that it was entitled to apply the presumption that Total in fact exercised decisive influence over the applicant during the period 1 November 1999 to 15 April 2002, on account of the shareholding structure, which, although admittedly indirect, was almost 100% between those companies. The Commission then took the view that the elements provided during the administrative procedure were insufficient to rebut that presumption and finally considered that Total should be held jointly and severally liable for the fine imposed on the applicant. That fine, which was calculated by taking into account inter alia the Total group’s turnover, was set at EUR 13.5 million.
91      It is necessary to recall at the outset the principles relating to the application of a deterrent multiplier before examining, first, the applicant’s argument relating to the error of law concerning the imputation of the conduct of a company to its parent company on the basis of ownership of the share capital alone, second, the Commission’s argument relating to the existence of aspects of the administrative procedure which permit the conclusion that the Total group presented itself as a single interlocutor during that administrative procedure and, third, the elements put forward by the applicant to rebut the presumption that Total in fact exercised decisive influence over it.
–       The principles relating to the application of a deterrent multiplier
92      According to the fourth and fifth paragraphs of Section 1A of the Guidelines ‘[i]t will also be necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect. Generally speaking, account may also be taken of the fact that large undertakings usually have legal and economic knowledge and infrastructures which enable them more easily to recognize that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law’.
93      According to the case‑law, it follows from those provisions that, with regard to the determination of the amount of fines for infringements of competition law, the Commission must not only take into account the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the European Union (Musique Diffusion française and Others v Commission, paragraph 59 above, paragraph 106). In that regard, the Guidelines provide that, in addition to the nature of the infringement, its actual impact on the market and the size of the relevant geographic market, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect (fourth paragraph of Section 1A of the Guidelines).
94      In the first place, it is settled case-law that the objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is intended to ensure compliance by undertakings with the competition rules laid down by the Treaty for the conduct of their activities within the European Union and that that objective can be properly achieved only if regard is had to the situation of the undertaking at the time when the fine is imposed (Degussa v Commission, paragraph 35 above, paragraphs 279 to 285, and 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 (‘Tokai I’), paragraph 241). The case‑law has made it clear in particular that the need to ensure that the fine has a sufficient deterrent effect 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 other hand excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to ensure that the fine is effective and, second, respect for the principle of proportionality (Degussa v Commission, paragraph 35 above, paragraph 283).
95      In the second place, the Commission may, in accordance with the Guidelines, take into account, for the purpose of upwardly adjusting the basic amount of the fine, the legal and economic infrastructures available to the undertakings to enable them to recognise that their conduct constitutes an infringement (Degussa v Commission, paragraph 35 above, paragraph 289). According to the case-law, that factor is intended to punish large undertakings more severely since they are presumed to have sufficient knowledge and structural resources to be aware that their conduct constitutes an infringement and to assess the potential benefits of it, and, on that assumption, the turnover on the basis of which the Commission determines the size of the undertakings in question, and therefore their capacity to determine the character and consequences of their conduct, must relate to their situation at the time of the infringement (Degussa v Commission, paragraph 35 above, paragraphs 289 and 290).
96      In the present case, in order to ensure that the fine had sufficient deterrent effect, the Commission applied a multiplier of 1.5 to the applicant, in view of the worldwide turnover achieved by the Total group in 2005, namely the year preceding the adoption of the Decision. The Commission stated that the purpose of that multiplier is to deter such illegal behaviour in the future by the undertaking concerned and by other undertakings of similar size and that the multiplier should be in line with the overall size of the undertaking at a time shortly before the fine is actually imposed on it (recitals 323 and 324 of the contested decision).
–       The error of law
97      The Commission found in the contested decision that, although the applicant was the legal person which participated directly in the infringement, Total, as parent company which indirectly owned the applicant almost 100%, was capable of exercising decisive influence over its commercial policy during part of the period of infringement and therefore had to be held liable for the infringement committed by the applicant. Consequently, the Commission applied a multiplier of 1.5 to the applicant, in view of the worldwide turnover achieved by the Total group in 2005.
98      It should be noted at the outset that European Union competition law refers to the activities of undertakings (Aalborg Portland and Others v Commission, paragraph 32 above, paragraph 59) and that the concept of undertaking within the meaning of Article 81 EC includes economic entities which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (see Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 54 and the case-law cited). The concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40).
99      The anti-competitive conduct of an undertaking can be imputed to another undertaking where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them (Case C‑294/98 P Metsä Serla and Others v Commission [2000] ECR I‑10065, paragraph 27; Dansk Rørindustri and Others v Commission, paragraph 59 above, paragraph 117; and Akzo Nobel and Others v Commission, paragraph 88 above, paragraph 58). Thus, the conduct of a subsidiary may be imputed to the parent company where the subsidiary does not decide independently upon its own conduct on the market but carries out, in all material respects, the instructions given to it by the parent company, since those two undertakings form an economic entity (Imperial Chemical Industries v Commission, paragraph 86 above, paragraphs 133 and 134).
100    It is therefore not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking in the sense described above that the Commission is able to address the decision imposing fines to the parent company of a group of companies and, therefore, to take account of the group turnover when setting the fine. It must be borne in mind that European Union competition law recognises that different companies belonging to the same group form an economic entity and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not decide independently upon their own conduct on the market (Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290).
101    In the specific case where a parent company has a 100% shareholding in a subsidiary which has committed an infringement, the parent company can exercise a decisive influence over the conduct of the subsidiary and, moreover, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 88 above, paragraph 60 and the case-law cited).The Courts of the European Union have moreover held that the presumption that a subsidiary does not conduct itself independently on the market is also applicable to subsidiaries which are almost 100% owned by a parent company (Michelin v Commission, paragraph 100 above, paragraph 290, and judgment of 30 September 2009 in Case T‑174/05 Elf Aquitaine v Commission, not published in the ECR, paragraph 197), and that the existence of intermediary companies between the subsidiary and the parent company does not affect the possibility of applying that presumption (Stora Kopparbergs Bergslags v Commission, paragraph 71 above, paragraphs 80 to 85, and Akzo Nobel and Others v Commission, paragraph 88 above, paragraphs 78 and 83; Michelin v Commission, paragraph 100 above, paragraph 290). In the present case, such a presumption is therefore applicable to Total SA, which indirectly owned 99.73 % of the applicant’s capital.
102    In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to avail itself of the presumption that the parent company exercises a decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for 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 (Stora Kopparbergs Bergslags v Commission, paragraph 71 above, paragraph 29, and Akzo Nobel and Others v Commission, paragraph 88 above, paragraph 61, and General Química and Others v Commission, paragraph 88 above, paragraph 40).
103    Whilst it is true that at paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission, paragraph 71 above, the Court of Justice referred, not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the information on which the General Court had based its reasoning in that case and not to make the application of the presumption mentioned above subject to the production of additional indicia relating to the actual exercise of influence by the parent company over its subsidiary (Akzo Nobel and Others v Commission, paragraph 88 above, paragraph 62, and General Química and Others v Commission, paragraph 88 above, paragraph 41).
104    In challenging the use made of the presumption by the Commission, the applicant complains that the Commission infringed the principle of the presumption of innocence and the principle actori incumbit probatio, in accordance with which it is not possible to impose on a party the burden of proving its innocence.
105    This argument is not well founded. Although, pursuant to Article 2 of Regulation No 1/2003, the burden of proving an infringement of Article 81(1) EC or of Article 82 EC rests on the authority alleging the infringement, recourse to such a presumption that a parent company in fact exercises decisive influence over its wholly-owned subsidiary does not lead to a reversal of the burden of proof, but lays down the standard of proof which must be satisfied when determining whether liability for an infringement is to be imputed to the parent company or the subsidiary (Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission, paragraph 88 above, ECR I‑8241). In so far as the fact that the parent company wholly owns its subsidiary permits the presumption that influence is exercised, that presumption is deemed to satisfy the requirements as to the burden of proof if the parent company does not rebut it by adducing conclusive evidence to the contrary (see, to that effect, Aalborg Portland and Others v Commission, paragraph 32 above, paragraph 79). Thus, there is an interplay between the respective burdens of adducing evidence prior to consideration of the objective burden of proof (Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission, point 74, and in Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, I‑8730, point 73).
106    The applicant also submits that the Commission infringed the principle that penalties must fit the offence, according to which an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under European Union competition law (Joined Cases T‑45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraph 63, confirmed on appeal by Joined Cases C-65/02 P and C-73/02 P ThyssenKrup Stainless and ThyssenKrup Acciai speciali v Commission [2005] ECR I-6773, paragraph 82). However, as the Court has already pointed out, that principle must be reconciled with the concept of undertaking within the meaning of Article 81 EC, as interpreted by the Courts of the European Union (see paragraph 98 above). As already stated in paragraph 100 above, it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking within the meaning of Article 81 EC that the Commission is able to address the decision imposing fines to the parent company of a group of companies and to take account of the group turnover when setting the fine. In the present case, Total was held individually liable for an infringement which it is deemed to have committed itself on account of its legal and economic links with the applicant, by which it was able to determine the applicant’s conduct on the market (see, to that effect, Metsä‑Serla and Others v Commission, paragraph 99 above, paragraph 34). It follows that, in the present case, the imputation to the parent company of the infringement committed by its subsidiary, which has the effect that the group turnover is taken into account for the purposes of calculating the fine, does not run counter to the principle that penalties must fit the offence (Elf Aquitaine v Commission, paragraph 101 above, paragraphs 184 to 188, and judgment of 30 September 2009 in Case T‑168/05 Arkema v Commission, not published in the ECR, paragraphs 105 to 108).
107    Lastly, the applicant submits that the interpretation adopted by the Commission of the presumption that a parent company in fact exercises decisive influence over its wholly‑owned subsidiary makes it impossible to rebut that presumption.
108    It is however apparent from the case‑law of the Court of Justice that, in order to rebut the presumption that a parent company which owns 100% of the capital of its subsidiary in fact exercises a decisive influence over that subsidiary, it is for the parent company to put before the Commission and then, where relevant, the Courts of the European Union, any evidence which in its view is apt to demonstrate that they do not constitute a single economic entity relating to the organisational, economic and legal links between its subsidiary and itself; such evidence may vary from case to case and cannot therefore be set out in an exhaustive list (Akzo Nobel and Others v Commission, paragraph 88 above, paragraph 65, and General Química and Others v Commission, paragraph 88 above, paragraphs 51 and 52). Contrary to the applicant’s submission, it is therefore a rebuttable presumption which it is for the applicant to rebut.
109    It follows from all the foregoing that the Commission did not make an error of law by imputing to Total liability for the infringement committed by the applicant and by consequently taking account of the group turnover when setting the fine.
–       The existence of evidence showing that the Total group presented itself as a single interlocutor during the administrative procedure
110    The Commission states moreover in its pleadings that certain aspects of the administrative procedure indicate that Total and the applicant intended to speak with one voice, since the applicant replied on behalf of Total on several occasions during the administrative procedure, and that that circumstance supports the presumption that they formed part of the same undertaking. Thus, until the statement of objections, the applicant replied jointly to the requests sent to the two companies and, subsequently, Total never called in question the applicant’s replies to the Commission.
111    It is appropriate to examine that argument in a purely incidental manner, since, even if it were established, that circumstance constitutes only additional and optional indicia that the parent company in fact exercised decisive influence over its subsidiary (see paragraph 103 above).
112    Moreover, it should be pointed out as a preliminary point that the Commission made no mention of those joint replies to its requests for information in the statement of objections or the contested decision.
113    The Courts of the European Union have however recognised that the author of a contested decision is entitled to provide explanations at the stage of the judicial proceedings in order to supplement a statement of reasons which is already adequate in itself, since those explanations may serve a useful purpose in relation to review by the Courts of the European Union of the adequacy of the grounds of the decision, since they enable the institution to explain the reasons underlying its decision (Case C‑298/98 P Finnboard v Commission [2000] ECR I‑10157, paragraph 46).
114    As regards the claim that the applicant and Total intended to speak with one voice during the administrative procedure, the Courts of the European Union consider that the fact that a parent company presents itself as the sole interlocutor during the administrative stage could constitute an indication supporting the presumption that, with its subsidiary, it formed part of the same undertaking (Stora Kopparbergs Bergslags v Commission, paragraph 71 above, paragraph 29, and judgment of 18 December 2008 in Case T-85/06 General Química and Others v Commission, not published in the ECR, paragraph 66). However, the Court observes that, in the present case, the applicant and Total did not present themselves as a single interlocutor throughout the administrative procedure, as was the case in Stora Kopparbergs Bergslags v Commission, paragraph 71 above, and in Case T-85/06 General Química and Others v Commission, but only until their reply to the statement of objections. Accordingly, the Court is of the view that the joint replies given by the applicant and Total to the two requests for information from the Commission constitute only a weak indication of the existence of a single economic entity, which must be corroborated by other evidence.
–       The manifest error of assessment relating to Total’s actual exercise of decisive influence over the applicant
115    As was stated in paragraph 90 above, the Commission argued in recitals 239 to 251 of the contested decision that it was entitled to apply the presumption that Total in fact exercised decisive influence over the applicant during the period 1 November 1999 to 15 April 2002, on account of the shareholding structure, which, although admittedly indirect, was almost 100% between those companies. The Commission then took the view that the elements provided during the administrative procedure were insufficient to rebut that presumption and moreover considered that a number of elements strengthened the presumption that Total in fact exercised decisive influence over the applicant. The Commission observed inter alia that all the activities of the bitumen operating subsidiaries in Europe were coordinated by the ‘Marketing Europe’ department of Total France SA, a company which is linked economically and legally to Total Nederland NV only via Total, the group parent company. Within the group, strategic and investment decisions were taken by the Executive Committee (COMEX), which was the group’s decision‑making body, whereas coordination and monitoring of the results of all the group subsidiaries were carried out by the Management Committee (CODIR), those two bodies being part of Total. The Commission also found that the elements provided by Total aimed at establishing that its functions were limited to those of a holding company responsible for the human resources policy, consolidation of the turnover, supervision of cross‑cutting issues such as the environment or financial and legal functions, and review of the major investment projects of the subsidiaries were precisely the type of elements characteristic of a single economic entity. The Commission also took account of the fact that various operating subsidiaries of the group operated under the same brand name and that their turnover was consolidated at group level. Lastly, the Commission took account of personal links which in its view reinforced Total’s influence over the ‘Marketing Europe’ department and thus, over the applicant. The Director of ‘Marketing Europe’ of the Refining and Marketing Branch of the Total group, who was also a member of CODIR, had been a supervisory director of the applicant and of its direct parent company.
116    The applicant submits that the Commission made a manifest error of assessment by overestimating the personal links between itself and Total and by failing to take account of its low turnover as a proportion the group’s. Thus, contrary to the Commission’s assertion, it claims that it did not constitute, with Total, an economic unit and did not act, in the present case, like an undertaking within the meaning of Article 81 EC, which would justify the application of a deterrent multiplier based on the group’s turnover.
117    It is therefore for the Court to examine whether those two arguments are capable of rebutting the presumption that Total in fact exercised decisive influence over the applicant.
118    In the first place, in the applicant’s submission, the personal link with its parent company is not relevant, since the Commission failed to establish that that person had any interest in broaching the question of bitumen sales in the Netherlands.
119    However, it is apparent from the documents before the Court that the Director of ‘Marketing Europe’ of the Total group, who was also a member of the CODIR, had been managing director of Fina Nederland, the applicant’s predecessor, from 1991 to 1993, and became a supervisory director of the applicant in November 2001. According to the case-law, the representation of the parent company in the management bodies of its subsidiary constitutes relevant evidence that a parent company exercises effective control over the commercial policy of its subsidiary (Case T-354/94 Stora Kopparbergs Bergslags v Commission [1998] ECR II-2111, paragraphs 80 to 85), and it is not necessary that that presence of members of the parent company in the management bodes of the subsidiary be substantial. In the present case, even though that person was appointed to the CODIR only in February 2002, that is two months before the termination of the infringement, and regardless of the extent of CODIR’s powers over Total’s subsidiaries, it is apparent from all the foregoing that there are close and lasting personal links between Total’s management, the ‘Marketing Europe’ department and the applicant.
120    In the second place, the applicant submits that the members of the ‘Management Committee’ of Total never broached the question of bitumen sales in the Netherlands, which did not fall within their area of competence. However, it is apparent from the documents before the Court that the COMEX implements the strategic direction determined by the board of directors and has investment authority. The CODIR facilitates coordination among the various group units, monitors the results of the operational divisions and reviews the reports of the functional divisions. The functions of those bodies amount to strong indicia that those bodies in fact exercised significant influence over all the group subsidiaries, including the applicant. Moreover, the applicant did not provide any evidence in support of its claims that the COMEX never had occasion to make decisions in relation to the Dutch bitumen market. Those elements therefore constitute indicia that those two Total bodies in fact exercised significant influence over the applicant.
121    The applicant moreover puts forward an argument relating to the low level of its turnover in proportion to the Total group’s turnover. On the assumption that that is established, it does not however prove that Total allowed the applicant total autonomy to define its conduct on the market.
122    In conclusion, it follows from all the foregoing that the elements put forward by the applicant are not capable of rebutting the presumption that, by owning close to 100% of its capital, Total exercised decisive influence over the applicant. The Court concludes therefore that the Commission was right to increase the basic amount of the applicant’s fine by way of the application of a deterrent multiplier on the basis of the turnover of the Total group. The plea alleging the application of the wrong deterrent multiplier must therefore be rejected.
123    It follows from all the foregoing that the claims of the application for annulment of Article 2 of the contested decision must be rejected.
3.     The claims for a reduction of the amount of the fine
124    As regards the claims seeking a variation of the contested decision, as no element in the present case is capable of justifying a reduction of the amount of the fine, those claims should not be upheld. It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
125    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Total Nederland NV to pay the costs.
Jaeger
Wahl
Soldevila Fragoso
Delivered in open court in Luxembourg on 27 September 2012.
[Signature]
Table of contents
Facts
Procedure and forms of order sought
Law
1. The claims for annulment of Article 1 of the contested decision
Arguments of the parties
Findings of the Court
2. The claims for annulment of Article 2 of the contested decision
The incorrect assessment of the gravity of the infringement
The nature of the infringement
– Arguments of the parties
– Findings of the Court
The actual impact of the cartel on the market
– Arguments of the parties
– Findings of the Court
The failure to take account of mitigating circumstances
Arguments of the parties
Findings of the Court
The application of the wrong deterrent multiplier
Arguments of the parties
Findings of the Court
– The principles relating to the application of a deterrent multiplier
– The error of law
– The existence of evidence showing that the Total group presented itself as a single interlocutor during the administrative procedure
– The manifest error of assessment relating to Total’s actual exercise of decisive influence over the applicant
3. The claims for a reduction of the amount of the fine
Costs
* Language of the case: English.