Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Total v Commission

(Case T-344/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Fines — Gravity and duration of the infringement’

1. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Additional elements used by the Commission — Parent company and subsidiary appearing as sole interlocutor during the administrative procedure — Delegation of supervisory powers by the parent company — Assessment (Arts 81 EC and 82 EC) (see paras 32-38, 56, 64)

2. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 41, 65, 73)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Correction of an error of reasoning during the proceedings before the Court — Not permissible — Additional evidence designed to complement a sufficient statement of reasons and reply to the arguments of the applicant — Lawfulness (Arts 81 EC, 82 EC and 230 EC; Council Regulation No 1/2003, Art. 2) (see para. 55)

4. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — No reversal of the burden of proof or infringement of the principle of the presumption of innocence (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see para. 81)

5. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Discretion of the Commission — No infringement of principle that offences and penalties have a sound legal basis or of legal certainty (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 86-87)

6. Proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness (Rules of Procedure of the General Court, Art. 48(2)) (see para. 98)

7. Competition — EU rules — Infringements — Attribution — Legal person responsible for operating the undertaking during the infringement — Disappearance — Disappearance of the fact of absorption by another undertaking — Attribution of liability to the purchaser — Lawfulness (Arts 81 EC and 82 EC) (see paras 101-102)

8. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Ability of large undertakings to measure the impact of their conduct — Turnover to be taken into consideration (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, fourth and fifth paras) (see paras 108-111)

Re:

APPLICATION, principally, for 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.

Operative part

The Court:

1. Dismisses the action;

2. Orders Total SA to pay the costs.

Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Total v Commission

(Case T-344/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Fines — Gravity and duration of the infringement’

1. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Additional elements used by the Commission — Parent company and subsidiary appearing as sole interlocutor during the administrative procedure — Delegation of supervisory powers by the parent company — Assessment (Arts 81 EC and 82 EC) (see paras 32-38, 56, 64)

2. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 41, 65, 73)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Correction of an error of reasoning during the proceedings before the Court — Not permissible — Additional evidence designed to complement a sufficient statement of reasons and reply to the arguments of the applicant — Lawfulness (Arts 81 EC, 82 EC and 230 EC; Council Regulation No 1/2003, Art. 2) (see para. 55)

4. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — No reversal of the burden of proof or infringement of the principle of the presumption of innocence (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see para. 81)

5. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Discretion of the Commission — No infringement of principle that offences and penalties have a sound legal basis or of legal certainty (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 86-87)

6. Proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness (Rules of Procedure of the General Court, Art. 48(2)) (see para. 98)

7. Competition — EU rules — Infringements — Attribution — Legal person responsible for operating the undertaking during the infringement — Disappearance — Disappearance of the fact of absorption by another undertaking — Attribution of liability to the purchaser — Lawfulness (Arts 81 EC and 82 EC) (see paras 101-102)

8. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Ability of large undertakings to measure the impact of their conduct — Turnover to be taken into consideration (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, fourth and fifth paras) (see paras 108-111)

Re:

APPLICATION, principally, for 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.

Operative part

The Court:

1. Dismisses the action;