Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 — Arkema v Commission

(Case T-168/05)

‛Competition — Agreements, decisions and concerted practices — Market for monochloroacetic acid — Decision finding an infringement of Article 81 EC — Market sharing and price fixing — Imputability of the unlawful conduct — Principle that penalties must fit the offence — Obligation to state the reasons on which the decision is based — Fines — Proportionality — Gravity and duration of the infringement — Deterrent effect — Actual impact on the market — Attenuating circumstances — Role of follower — Aggravating circumstances — Repeated infringement’

1. Competition — Agreements, decisions and concerted practices — Undertaking — Concept — Economic unit — Attribution of infringements — Parent company and subsidiaries — Joint and several liability of the companies concerned — Infringement of the principle that penalties must fit the offence — None (Art. 81(1) EC) (see paras 65, 66, 80, 97-99, 105-108, 129)

2. Competition — Community 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 — Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary — Applicability of the presumption where the parent company holds nearly all the capital of the subsidiary (Arts 81 EC and 82 EC) (see paras 67-70, 74-77, 81, 82, 100)

3. Competition — Community 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 or part-owned subsidiaries (Arts 81 EC and 82 EC) (see paras 89-92, 115)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules (Arts 81 EC, 82 EC and 253 EC) (see paras 121, 127)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 3) (see paras 148, 149, 153)

6. Competition — Fines — Amount — Determination — Criteria — Actual impact on the market — Criteria for assessment (Commission Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A, first para.) (see paras 162-165)

7. Competition — Fines — Amount — Determination — Deterrent effect — Account taken of the size and global resources of the fined undertaking — Relevance — Application of a multiplier to the starting amount — Breach of principle of proportionality — None (Council Regulations Nos 17, Art. 15, and 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 1A) (see paras 178-183, 206, 207)

8. Competition — Fines — Amount — Determination — Criteria — Duration of the infringement — Increase in the starting amount of the fine — Taking into account of variations in the intensity of the infringement — Not included (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1B) (see paras 187-189)

9. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Change of control of a repeatedly infringing company taking place between the two infringements — Application of the increase in the fine’s amount for repeat infringement only to the subsidiary and not to the company controlling it at the time the Commission’s decision was adopted — Lawfulness (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03) (see paras 200-205)

Re:

APPLICATION for, primarily, annulment of Article 1(d), Article 2(c) and Article 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case No COMP/E-1/37.773 — MCAA) and, in the alternative, request to amend Article 2(c) and (d) of that decision.

Operative part

The Court:

1. Dismisses the action;