Case T-59/07

Polimeri Europa SpA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in butadiene rubber and emulsion styrene butadiene rubber – Decision finding an infringement of Article 81 EC – Attribution of the offending conduct – Single infringement – Proof of the existence of the cartel – Fines – Gravity and duration of the infringement – Aggravating circumstances)

Summary of the Judgment

1. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof

(Arts 81(1) EC and 82 EC)

2. Competition – Administrative procedure – Statement of objections – Legal nature – Preparatory nature

(Art. 81 EC)

3. Competition – Administrative procedure – Powers of the Commission – Power to join two separate proceedings

(Art. 81 EC)

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient

(Art. 81(1) EC)

5. Competition – Community rules – Infringements – Attribution

(Arts 81 EC and 82 EC)

6. Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – Similar requirements for submissions made in support of a plea

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c))

7. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient

(Art. 81(1) EC)

8. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement borne by the Commission – Limits

(Art. 81(1) EC)

9. Competition – Agreements, decisions and concerted practices – Burden of proof – Undertaking’s response to the request for information from the Commission

(Arts 81 EC and 82 EC)

10. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement

(Art. 81(1) EC)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment according to the nature of the infringement – Very serious infringements

(Art. 81 EC; Commission Notice 98/C 9/03)

12. Competition – Fines – Amount – Determination – Criteria – Discretion of the Commission – No obligation to ensure a proportion between the amount of the fines and the overall volume of the relevant product market

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(3))

13. Competition – Fines – Amount – Determination – Criteria – Deterrent effect of the fine

(Art. 81 EC; Commission Notice 98/C 9/03)

14. Competition – Fines – Amount – Determination – Criteria – Turnover taken into consideration

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept

(Art. 81 EC; Commission Notice 98/C 9/03, Section 2)

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Agreement not implemented in practice – Assessment

(Art. 81 EC; Commission Notice 98/C 9/03, Section 3, second indent)

1. 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. It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place.

Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must 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.

In that connection, no general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty.

Concerning, in particular, statements made under the Leniency Notice, no provision prohibits the Commission from using such statements for the purpose of demonstrating the existence of an infringement of the competition rules. Such statements cannot be regarded as devoid of probative value, since statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence. Even though some caution as to evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, in view of the fact that it is possible that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive to submit evidence which distorts the truth regarding the conduct of the other participants in the cartel. Any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice. In particular, where a person admits that he has committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documents in question, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth.

(see paras 50-52, 58)

2. The statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure in question. Moreover, the Commission’s drawing–up of a statement of objections cannot possibly be considered to be evidence of a presumption of the culpability of the undertaking concerned. Otherwise, the opening of any proceedings in this area would potentially be liable to infringe the principle of the presumption of innocence.

In those circumstances, the drawing-up of a second statement of objections cannot, in itself, result in a finding of any irregularity.

As regards claims that a second statement of objections contains amendments in relation to the first, that procedural document is inherently provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the parties and subsequent findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains. Consequently, if the Commission is entitled to amend, both in fact and in law, its arguments between the statement of objections and its final decision, it is a fortiori entitled to do so between two statements of objections.

(see paras 68-70, 73)

3. In competition matters, the Commission is entitled both to disjoin and to join proceedings for objective reasons. It may thus join two proceedings, each concerning a particular product, where those products belong to the same business sector having regard, inter alia, to their physical characteristics and uses, and where certain unlawful meetings between undertakings concern both products. Even if the infringement in question can be regarded as in fact covering two distinct infringements, whether those infringements are established in a number of decisions or in a single decision is of no account, where it is established that the infringements in question are not time-barred.

Moreover, an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When the different actions form part of an overall plan, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. When the Commission is legally entitled to conclude that the various manifestations were part of a single infringement in that they were elements of an overall plan designed to distort competition, the fact that the number and intensity of the collusive practices varied according to the market concerned does not mean that the infringement did not concern the markets on which the practices were less intense and less numerous. It would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied according to the market concerned.

(see paras 100, 272)

4. For the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition. As regards, in particular, agreements of an anti-competitive nature which, as in the present case, are reached at meetings of competing undertakings, Article 81(1) EC is infringed where those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for the undertaking concerned to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.

Thus, where proof of concerted action between several undertakings is based not on a mere finding of parallel market conduct but on documents which show that the practices in question were the result of concerted action, an alternative explanation as regards the prices charged, to the effect that an alleged coordination of prices in reality constitutes the reaction of producers faced with raw material costs and evolution of the market, is not such as to call into question the Commission’s finding of the existence of a cartel between the undertakings concerned.

(see paras 103, 108-109)

5. When an entity engaged in an economic activity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement. However, where two entities constitute the same economic unit, the fact that the entity which committed the infringement still exists does not in itself preclude the entity to which it transferred its economic activities from being subject to a penalty. Applying penalties in this way is permissible in particular where those entities have been subject to control by the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions.

Where, therefore, at the time of their offending conduct, two companies are wholly owned, directly or indirectly, by the same company, the principle of personal responsibility does not preclude the penalty for the infringement initially committed by the first company and subsequently continued the second from being imposed in its entirety on the latter.

In any event, a penalty imposed on an undertaking that continues to exist in law, but has ceased economic activity, risks having no deterrent effect. Moreover, if no possibility of imposing a penalty on an entity other than the one which committed the infringement were available, undertakings could escape penalties by simply changing their identity through restructurings, transfers or other legal or organisational changes.

(see paras 123-126, 129)

6. Under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. For an action to be admissible, that the basic matters of law and fact relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application.

Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function.

Similar requirements are called for where a submission is made in support of a plea in law. A submission does not satisfy the above requirements if its essential elements are set out only in the annexes to the application.

An undertaking cannot compensate for that deficiency by introducing, at the reply stage, certain factual or legal data and by referring to annexes to the application or by providing new annexes to the reply. In reviewing the compliance of the application with the requirements of Article 44(1) of the Rules of Procedure, the content of the reply is, by definition, not relevant. In particular, the admissibility of pleas and arguments put forward in the reply as amplifications of pleas in the application cannot be raised with the aim of compensating for a failure, arising during the initiation of the action, to comply with the requirements of Article 44(1) of the Rules of Procedure, without rendering the latter provision devoid of purpose.

(see paras 161-162, 168-169)

7. In the case of agreements reached at meetings of competing undertakings, the competition rules are infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty.

(see para. 173)

8. In practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated therein. In that context, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission.

(see para. 177)

9. In administrative proceedings for breach of the competition rules, statements made on behalf of undertakings have significant probative value, since they entail considerable legal and economic risks. That probative value is particularly high when the statements of the undertakings support other statements of the same nature.

Moreover, answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion.

(see paras 179, 183, 267, 270)

10. An undertaking may be held liable for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements, if it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and if that overall plan included all the constituent elements of the cartel. Similarly, the fact that different undertakings have played different roles in the pursuit of a common objective does not mean that there was no identity of anti-competitive object and, therefore, of infringement, provided that each undertaking has contributed, at its own level, to the pursuit of the common object.

(see para. 193)

11. It follows from the description of very serious infringements in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, that agreements or concerted practices aimed in particular at setting target prices or the allocation of market shares may entail, solely on the basis of their very nature, the characterisation as ‘very serious’, without the Commission being required to demonstrate an actual impact of the infringement on the market. Similarly, horizontal price agreements are particularly injurious under Community competition law and may, by reason of that fact alone, be classified as very serious.

(see para. 225)

12. When fixing the amount of each fine, the Commission has a discretion. Under Article 23(3) of Regulation No 1/2003, the amount of the fine is to be determined on the basis of the gravity of the infringement and its duration. Furthermore, that amount is the result of a series of arithmetical calculations performed by the Commission in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty. That amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the existence of aggravating or attenuating circumstances.

It cannot be inferred from that legal framework that the Commission must ensure a proportion between the amount of the fine, as thus calculated, and the overall volume of the relevant product market, for a given year of the infringement, when the infringement in question lasted several years and the amount of the fine also depends on other factors linked to the individual conduct of the undertaking.

(see para. 232)

13. The Commission’s power to impose fines on undertakings which, intentionally or negligently, commit an infringement of Article 81 EC is one of the means given to it with which to carry out the task of supervision conferred on it by Community law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that, in assessing the gravity of an infringement for the purpose of setting the amount of the fine, the Commission 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 Community.

That 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. This is so that the fine is not rendered negligible or excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, firstly, the need to ensure that the fine is effective and, secondly, respect for the principle of proportionality. A large undertaking, owing to its considerable financial resources by comparison with those of the other members of a cartel, can more readily raise the necessary funds to pay its fine, which, if the fine is to have a sufficiently deterrent effect, justifies the imposition, in particular by the application of a multiplier, of a fine proportionately higher than that imposed in respect of the same infringement committed by an undertaking without such resources. In particular, the overall turnover of each undertaking participating in a cartel is relevant in setting the amount of the fine.

The objective of deterrence which the Commission is entitled to pursue when setting fines is intended to ensure that undertakings comply with the competition rules laid down by the Treaty in respect of the conduct of their activities within the Community or the European Economic Area. It follows that the deterrence factor which may be included in the calculation of the fine is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. That principle applies, in particular, where the Commission has determined a ‘deterrence multiplier’ with which the fine imposed on an undertaking is adjusted.

(see paras 243-246)

14. The fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question.

(see paras 253, 313)

15. Section 2 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty refers as an example of aggravating circumstances, to repeated infringement of the same type by the same undertakings. The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements. Any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question.

In that regard, where the Commission seeks to invoke the concept of an undertaking within the meaning of Article 81 EC for the purpose of applying the aggravating circumstance of repeated infringement, even if the legal persons involved in the infringements in question are not the same, it must adduce detailed and specific evidence to support its assertion.

Thus, where the development of the structure and control of the companies concerned is particularly complex, it is for the Commission to be particularly precise and to adduce all the detailed evidence necessary for it to be considered that the companies addressed by its decision and those addressed by earlier decisions formed the same ‘undertaking’ within the meaning of Article 81 EC.

(see paras 293-295, 298-299, 302)

16. According to the second indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, non-implementation in practice of the offending agreements or practices may also amount to a mitigating circumstance. However, the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself on the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined.

An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit and an undertaking which does not distance itself from the results of a meeting in which it was present in principle retains full responsibility for the fact of its participation in the cartel. Therefore, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful cartel and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition.

(see paras 306-307)

JUDGMENT OF THE GENERAL COURT (First Chamber)

13 July 2011 ( )

(Competition – Agreements, decisions and concerted practices – Market in butadiene rubber and emulsion styrene butadiene rubber – Decision finding an infringement of Article 81 EC – Imputability of the offending conduct – Single infringement – Proof of the existence of the cartel – Fines – Gravity and duration of the infringement – Aggravating circumstances)

In Case T‑59/07,

Polimeri Europa SpA, established in Brindisi (Italy), represented by M. Siragusa and F. Moretti, lawyers,

applicant,

v

European Commission, represented by V. Di Bucci, G. Conte and V. Bottka, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or, in the alternative, annulment or reduction of the fine imposed on Polimeri Europa SpA,

THE GENERAL COURT (First Chamber),

composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska-Białecka and N. Wahl, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 21 October 2009,

gives the following

Judgment

Background to the dispute

1 By Decision C(2006) 5700 final of 29 November 2006 (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the market for those products.

2 The undertakings to which the contested decision is addressed are:

– Bayer AG, established in Leverkusen (Germany);

– The Dow Chemical Company, established in Midland, Michigan (United States) (‘Dow Chemical’);

– Dow Deutschland Inc., established in Schwalbach (Germany);

– Dow Deutschland Anlagengesellschaft mbH (formerly Dow Deutschland GmbH & Co. OHG), established in Schwalbach;

– Dow Europe, established in Horgen (Switzerland);

– Eni SpA, established in Rome (Italy);

– Polimeri Europa SpA, established in Brindisi (Italy) (‘Polimeri’);

– Shell Petroleum NV, established in The Hague (Netherlands);

– Shell Nederland BV, established in The Hague;

– Shell Nederland Chemie BV, established in Rotterdam (Netherlands);

– Unipetrol a.s., established in Prague (Czech Republic);

– Kaučuk a.s., established in Kralupy nad Vltavou (Czech Republic);

– Trade-Stomil sp. z o.o., established in Łódź (Poland) (‘Stomil’).

3 Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe are wholly controlled, directly or indirectly, by Dow Chemical (collectively ‘Dow’) (recitals 16 to 21 to the contested decision).

4 Eni’s business in the relevant products was initially carried out by EniChem Elastomeri Srl, indirectly controlled by Eni through its subsidiary EniChem SpA (‘EniChem SpA’). On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including its butadiene rubber and emulsion styrene butadiene rubber business) to its wholly-owned subsidiary Polimeri. Eni has had direct and full control of Polimeri since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial SpA (recitals 26 to 32 to the contested decision). The Commission uses the name ‘EniChem’ in the contested decision to refer to any company owned by Eni (‘EniChem’) (recital 36 to the contested decision).

5 Shell Nederland Chemie is a subsidiary of Shell Nederland, which is itself wholly controlled by Shell Petroleum (collectively ‘Shell’) (recitals 38 to 40 to the contested decision).

6 Kaučuk was created in 1997, following a merger between Kaučuk Group a.s. and Chemopetrol Group a.s. On 21 July 1997, Unipetrol acquired all assets, rights and obligations of the merged undertakings. Unipetrol owns 100% of the shares in Kaučuk (recitals 45 and 46 to the contested decision). Furthermore, according to the contested decision, Tavorex s.r.o. (‘Tavorex’), established in the Czech Republic, represented Kaučuk (and its predecessor Kaučuk Group) for exports between 1991 and 28 February 2003. Still according to the contested decision, from 1996 Tavorex represented Kaučuk at meetings of the European Synthetic Rubber Association (recital 49).

7 Stomil, according to the contested decision, represented the Polish producer Chemical Company Dwory SA (‘Dwory’) in its export business for around 30 years, until at least 2001. Still according to the contested decision, between 1997 and 2000 Stomil represented Dwory at meetings of the European Synthetic Rubber Association (recital 51).

8 The period taken to be the duration of the infringement is from 20 May 1996 to 28 November 2002 (for Bayer, Eni and Polimeri), from 20 May 1996 to 31 May 1999 (for Shell Petroleum, Shell Nederland and Shell Nederland Chemie), from 1 July 1996 to 28 November 2002 (for Dow Chemical), from 1 July 1996 to 27 November 2001 (for Dow Deutschland), from 16 November 1999 to 28 November 2002 (for Unipetrol and Kaučuk), from 16 November 1999 to 22 February 2000 (for Stomil), from 22 February 2001 to 28 February 2002 (for Dow Deutschland Anlagengesellschaft) and from 26 November 2001 to 28 November 2002 (for Dow Europe) (recitals 476 to 485 to and Article 1 of the operative part of the contested decision).

9 Butadiene rubber (‘BR’) and emulsion styrene butadiene rubber (‘ESBR’) are synthetic rubbers used essentially in tyre production. The two products are substitutable for each other and also for other synthetic rubbers and for natural rubber (recitals 3 to 6 to the contested decision).

10 In addition to the producers referred to in the contested decision, other producers located in Asia and in Eastern Europe sold limited quantities of BR and ESBR in the EEA. Moreover, a considerable amount of BR is produced directly by large tyre manufacturers (recital 54 to the contested decision).

11 On 20 December 2002 Bayer approached the Commission and expressed its desire to cooperate pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) with regard to BR and ESBR. As regards ESBR, Bayer provided an oral statement describing the activities of the cartel. That oral statement was recorded on tape (recital 67 to the contested decision).

12 On 14 January 2003 Bayer made an oral statement describing the activities of the cartel with respect to BR. That oral statement was recorded on tape. Bayer also provided minutes of meetings of the BR committee of the European Synthetic Rubber Association (recital 68 to the contested decision).

13 On 5 February 2003 the Commission notified Bayer of its decision to grant it conditional immunity from a fine (recital 69 to the contested decision).

14 On 27 March 2003 the Commission carried out an inspection pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) at the premises of Dow Deutschland & Co. (recital 70 to the contested decision).

15 Between September 2003 and July 2006 the Commission sent the undertakings to which the contested decision is addressed a number of requests for information pursuant to Article 11 of Regulation No 17 and Article 18 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) (recital 71 to the contested decision).

16 On 16 October 2003 Dow Deutschland and Dow Deutschland & Co. met Commission staff and expressed their desire to cooperate pursuant to the Leniency Notice. At that meeting, an oral presentation of the cartel’s activities with respect to BR and ESBR was given. That oral presentation was recorded. A file containing documents relating to the cartel was also handed over (recital 72 to the contested decision).

17 On 4 March 2005 Dow Deutschland was informed of the Commission’s intention to grant it a reduction in its fine of between 30% and 50% (recital 73 to the contested decision).

18 On 7 June 2005 the Commission initiated the procedure and sent a first statement of objections to the undertakings to which the contested decision is addressed – with the exception of Unipetrol – and also to Dwory. The first statement of objections was also adopted against Tavorex but was not notified to that undertaking since it had been in liquidation since October 2004. The procedure against Tavorex was therefore closed (recitals 49 and 74 to the contested decision).

19 The undertakings concerned lodged written comments in relation to that first statement of objections (recital 75 to the contested decision). They also had access to the file, in the form of a CD-ROM, and to the oral statements and documents relating thereto at the Commission’s premises (recital 76 to the contested decision).

20 On 3 November 2005 Manufacture française des pneumatiques Michelin (‘Michelin’) requested leave to intervene. It submitted written comments on 13 January 2006 (recital 78 to the contested decision).

21 On 6 April 2006 the Commission adopted a second statement of objections addressed to the undertakings to which the contested decision is addressed. The undertakings concerned lodged written comments in that regard (recital 84 to the contested decision).

22 On 12 May 2006 Michelin lodged a complaint pursuant to Article 5 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) (recital 85 to the contested decision).

23 On 22 June 2006 the undertakings to which the contested decision is addressed (with the exception of Stomil) and Michelin took part in the hearing before the Commission (recital 86 to the contested decision).

24 Since it did not have sufficient evidence of Dwory’s participation in the cartel, the Commission decided to close the procedure against that undertaking (recital 88 to the contested decision). The Commission also decided to close the procedure against Syndial (recital 89 to the contested decision).

25 Furthermore, although two different case numbers (one for BR and one for ESBR) had initially been used (COMP/E‑1/38.637 and COMP/E‑1/38.638), after the first statement of objections the Commission used a single number (COMP/F/38.638) (recitals 90 and 91 to the contested decision).

26 The administrative procedure led to the adoption of the contested decision by the Commission on 29 November 2006.

27 According to Article 1 of the operative part of the contested decision, the following undertakings had infringed Article 81 EC and Article 53 of the EEA Agreement by participating, for the periods indicated, in a single and continuous infringement by which they agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers in the BR and ESBR sectors:

(a) Bayer, from 20 May 1996 to 28 November 2002;

(b) Dow Chemical, from 1 July 1996 to 28 November 2002; Dow Deutschland, from 1 July 1996 to 27 November 2001; Dow Deutschland Anlagengesellschaft, from 22 February 2001 to 28 February 2002; Dow Europe, from 26 November 2001 to 28 November 2002;

(c) Eni, from 20 May 1996 to 28 November 2002; Polimeri, from 20 May 1996 to 28 November 2002;

(d) Shell Petroleum, from 20 May 1996 to 31 May 1999; Shell Nederland, from 20 May 1996 to 31 May 1999; Shell Nederland Chemie, from 20 May 1996 to 31 May 1999;

(e) Unipetrol, from 16 November 1999 to 28 November 2002; Kaučuk, from 16 November 1999 to 28 November 2002;

(f) Stomil, from 16 November 1999 to 22 February 2000.

28 On the basis of the findings of fact and legal assessments set out in the contested decision, the Commission imposed fines on the undertakings concerned calculated according to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and in the Leniency Notice.

29 Article 2 of the operative part of the contested decision imposes the following fines:

(a) Bayer: EUR 0;

(b) Dow Chemical: EUR 64.575 million, of which:

(i) EUR 60.27 million jointly and severally with Dow Deutschland;

(ii) EUR 47.355 million jointly and severally with Dow Deutschland Anlagengesellschaft and Dow Europe

(c) Eni and Polimeri, jointly and severally: EUR 272.25 million;

(d) Shell Petroleum, Shell Nederland and Shell Nederland Chemie, jointly and severally: EUR 160.875 million;

(e) Unipetrol and Kaučuk, jointly and severally: EUR 17.55 million;

(f) Stomil: EUR 3.8 million.

30 Article 3 of the operative part of the contested decision orders the undertakings listed in Article 1 immediately to bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.

Procedure and forms of order sought

31 By application lodged at the Registry of the Court on 20 February 2007, Polimeri brought the present action.

32 By decision of the President of the Court of 1 April 2009, N. Wahl was designated to complete the Chamber as one of its members was prevented from attending.

33 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.

34 In the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court requested the parties to answer certain questions and to produce certain documents. The parties complied with those requests within the periods prescribed.

35 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 21 October 2009.

36 Polimeri claims that the Court should:

– carry out the measures of inquiry requested;

– annul the contested decision, in whole or in part, with all the consequences entailed as regards the amount of the fine;

– in the alternative, annul or reduce the fine;

– in any event, order the Commission to pay the costs.

37 The Commission contends that the Court should:

– dismiss the action;

– order Polimeri to pay the costs.

Law

38 In support of its claims, Polimeri puts forward, in essence, 16 pleas in law relating to procedural defects, to the substance of the contested decision and to the setting of the amount of the fine.

I – Claims for partial annulment of the contested decision

A – The pleas in law relating to procedural defects

1. First plea in law: inappropriate use of the Leniency Notice

a) Arguments of the parties

39 Polimeri maintains that the contested decision is ‘90%’ based on the statements of Bayer and Dow. The contested decision refers predominantly to oral statements. The documents produced as evidence are, moreover, very few in number and open to several interpretations.

40 The purpose of oral statements is to enable the Commission to start the investigation. In this case, those statements served as instruments for ascertaining facts, largely taking the place of the investigation itself, and as a means of exerting pressure on the undertakings which had cooperated with the Commission.

41 In particular, firstly, Polimeri points out that Bayer’s statement of 20 December 2002 served to launch only one inspection, namely of Dow. No other undertaking mentioned by Bayer in its first statement was inspected.

42 Secondly, as regards the evidence adduced, it is extremely meagre and equivocal. Those documents could be interpreted as evidence of exchanges of sensitive information, or as evidence of agreements, but could equally merely reflect market price data known throughout the sector and coming from other sources.

43 Polimeri makes reference, in particular, to some notes taken by one of the participants in a meeting held in Düsseldorf (Germany) on 21 February 1996, which it annexes to the application. The Commission initially used those documents as evidence of an agreement on prices, before concluding that that meeting was not one of the alleged cartel meetings and withdrawing the documents in question from the inculpatory evidence. Those documents are as detailed as, or perhaps even more detailed than, the other documents drawn up by that same participant, to which the Commission attributed value as evidence of illegal agreements.

44 In that context, the undertakings found it necessary to include unprovable details in their statements. An early disastrous effect of that policy is illustrated by the statements made in the second round of interviews. Polimeri thus points out that, at the meeting of 12 December 2005 with Dow employees (Mr N. and Mr F.), the Commission asked some ad hoc questions to try to force those persons to make ‘obliging’ statements about the alleged cartel meetings, but also about the possible price increases which were the subject of the alleged agreements. The Commission even went to the extent of itself providing the data for possible price increases and, when it had not obtained the results hoped for, the Commission omitted to mention it in the contested decision. Similarly, recital 244 to the contested decision illustrates the fact that Dow was ‘forced’ to give evidence. Dow’s statement of 17 November 2005 thus shows that it altered its version of the facts after reading Bayer’s statements. The Commission’s conclusion in that regard does not reflect Dow’s statements. Similarly, Bayer’s statement of 6 December 2005 concerning the meeting held in Düsseldorf on 21 February 1996 (see paragraph 43 above) illustrates the fact that that company managed to accuse itself of acts which it did not commit.

45 Thirdly, Polimeri states that the only legislative reference to the status of statements taken by virtue of the Commission’s powers of investigation is contained in Article 19(1) of Regulation No 1/2003. It is established that the Commission may not use oral statements made by undertakings in the context of an application for immunity as decisive proof of the existence of a cartel. This stems from the fact that such statements are made by undertakings for their own advantage. According to Polimeri, in so far as most value was attached by the Commission to those statements (Polimeri points out in particular that, of the 15 meetings cited by the Commission which are supposed to have taken place between competitors, the existence of only four is also proved in writing), the assertion that the ‘total refusal [of Syndial and Polimeri] to admit their participation (in the cartel or in specific conduct) cannot, in itself, outweigh the evidence available to the Commission’ (recital 327 to the contested decision) reflects a system in which the prosecution, which is also judge, takes advantage of its powers with impunity.

46 Moreover, the case-law cited by the Commission in recitals 203 to 205 to the contested decision does not support its case. The General Court thus held that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, could not be regarded as constituting adequate proof of an infringement committed by the latter unless it was supported by other evidence (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). That approach was confirmed by the Court of Justice on appeal.

47 Polimeri adds that the arguments put forward by it do not relate to the ‘substance of the case’, as the Commission states in its pleadings. According to Polimeri, its complaints relate to the infringement of the right to a fair hearing caused by the reversal of the burden of proof resulting from the singular use made of the statements of the undertakings which sought the adoption of leniency measures. Polimeri observes that the Commission responds to its arguments in the context of the eighth plea by citing the case-law relating to the burden of proof. However, the case-law cited in that regard is not relevant, since, in the cases to which the Commission refers, the involvement of the undertakings was borne out by documentary evidence. In this case, the contested decision contains a general part which is nothing but a jigsaw of statements.

48 The Commission states that the complaints made by Polimeri relate to proof of the infringement, and therefore to the substance of the case, and not to alleged procedural defects. The Commission therefore refers to the part of the defence relating to alleged errors in the assessment of the evidence relating to the existence of the cartel.

b) Findings of the Court

49 As a preliminary point, it must be held that, even though some of the arguments made in the context of the first plea relate to proof of the infringement and are therefore ineffective in the context of the pleas relating to procedural defects allegedly vitiating the adoption of the contested decision, Polimeri also takes issue, in general, with the Commission’s use of statements made by undertakings as evidence. In that regard, Polimeri maintains, in essence, that too much importance was attached to statements made by undertakings, to the detriment of documentary evidence, and that those statements are not reliable.

50 It should be recalled that, 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 (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86). It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited).

51 Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must 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, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 51).

52 In that connection, no general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschaapij and Others v Commission [1999] ECR II-931 (‘PVC II’), paragraph 512, and JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 192).

53 Furthermore, statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks (see, to that effect, JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraphs 205 and 211, and Sumitomo Metal Industries and Nippon Steel v Commission, cited in paragraph 51 above, paragraph 103).

54 It is true that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is challenged by several other undertakings accused of participating in the same cartel, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 219).

55 However, in this case, the contested decision is based on a number of statements made by undertakings which are to the same effect, namely statements by Bayer, Dow and Shell, such that they substantiate each other (see, to that effect, Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 168). Moreover, it is common ground that the contested decision is also based on documentary evidence, in particular handwritten notes taken at meetings. The fact that Polimeri disputes the evidential value of those documents cannot affect the contested decision as regards the procedure followed by the Commission.

56 In the light of those considerations, there is nothing to support a finding that the contested decision is vitiated by procedural defects affecting its lawfulness.

57 The other arguments put forward by Polimeri cannot affect that conclusion.

58 As regards the alleged fact that the Commission is not entitled to act on the basis of statements made under the Leniency Notice, it must be pointed out, firstly, that no provision prohibits the Commission from using such statements for the purpose of demonstrating the existence of an infringement of the competition rules. Secondly, such statements cannot be regarded as devoid of probative value, since statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (Bolloré and Others v Commission, cited in paragraph 55 above, paragraph 166). Thirdly, even though some caution as to evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, in view of the fact that it is possible that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact remains that Polimeri’s argument does not correspond to the inherent logic of the procedure provided for in the Leniency Notice. The fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive to submit evidence which distorts the truth regarding the conduct of the other participants in the cartel. Any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70). In particular, it must be concluded that where a person admits that he has committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documents in question, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth (JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 212).

59 As regards the claim that some of the undertakings concerned had been ‘forced’ to make statements, Polimeri pleads a breach of the principle of sound administration. It must be recalled, in that regard, that the guarantees conferred by the Community legal order in administrative procedures include, in particular, the principle of sound administration, which entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case T‑44/90 La Cinq v Commission [1992] ECR II‑1, paragraph 86, and Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 129). A breach of the principle of sound administration may lead to annulment of the decision in question if it is established that the content of that decision would have differed if that irregularity had not occurred (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 91; see also Volkswagen v Commission, cited in paragraph 50 above, paragraph 283). In this case, Polimeri has not adduced such proof. In any event, even if the alleged breach of the principle of sound administration leads the Court to disregard the statements by undertakings which are referred to by Polimeri, that would not affect the other considerations contained in the contested decision. There is therefore nothing to support a finding that, in that context, the Commission would have been led to conclude that no infringement of the competition rules occurred.

60 In the light of those considerations, the first plea in law raised by Polimeri must be rejected as unfounded.

2. Second plea in law: unjustified sending of a second statement of objections

a) Arguments of the parties

61 Polimeri submits that the sending to the parties concerned of an additional statement of objections is made necessary only where the result of inspections leads the Commission to charge the undertakings with new acts or to alter substantially the evidence for the infringements found.

62 In this case, the Commission justified the sending of the new statement of objections by numerous items of evidence which it claimed were discovered during the additional investigations which took place after the receipt of the written comments of the parties concerned on the first statement of objections. It merely took new statements from the same companies and often from the same individuals with regard to events which had already been covered by numerous statements.

63 The only genuinely new item is the request for leave to intervene made by Michelin on 3 November 2005, which was put into concrete form by comments submitted on 13 January 2006 and the provision of data relating to the prices paid to its suppliers during the reference period. However, the data provided by Michelin were not used by the Commission.

64 The new statement of objections is therefore not justified by any new factor and does not seem lawful in the light of the case-law. Moreover, it led to a significant delay in the course of the procedure and caused the undertakings to incur additional expenditure for their defence.

65 Furthermore, the function of the statement of objections was distorted, in so far as it was used to reply to the arguments put forward by the undertakings. Indeed, the replies of Syndial and Polimeri were used by the Commission as an instrument to refine its case, all factors liable to weaken the latter having been deliberately discarded. Polimeri states, in that regard, that any quantitative allusion to the relationship between the total market for the product(s) and the market hypothetically controlled by the alleged cartel as well as the fundamental finding of substitutability between natural rubber and synthetic rubber are disregarded in the precise quantitative analysis of the price variations.

66 Finally, the contested decision introduces an enormous change as regards the quantification of the market for the products concerned, as compared with the second statement of objections. That market was estimated in 2001 at EUR 820 million in the second statement of objections and at EUR 550 million in the contested decision (recital 66). That difference of more than 30%, which is unexplained, produces adverse effects on the situation of the undertakings. It changes the relationship between the market covered by the participants in the alleged cartel and the ‘non-rigged’ market. It also changes the position of the undertakings on the market and therefore the hypothetical capacity of each of them to affect the dynamics of competition. Those factors were new, Polimeri alleging that its rights of defence were infringed, since it was unable to put forward its arguments in that regard.

67 The Commission contends that the plea should be rejected. It submits, in essence, that the sending of a second statement of objections in this case does not indicate any illegality.

b) Findings of the Court

68 The statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure in question (order in Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries v Commission [1986] ECR 1899, paragraphs 13 and 14; see, by analogy, Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 63).

69 Moreover, the Commission’s drawing–up of a statement of objections cannot possibly be considered to be evidence of a presumption of the culpability of the undertaking concerned. Otherwise, the opening of any proceedings in this area would potentially be liable to infringe the principle of the presumption of innocence (Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 99).

70 In those circumstances, the drawing-up, in this case, of a second statement of objections cannot, in itself, result in a finding of any irregularity.

71 In so far as Polimeri’s arguments may be construed as in fact alleging a breach of the ‘reasonable time’ principle, it must be recalled that such a breach, if proved, can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that breach of that principle has adversely affected the rights of defence of the undertakings concerned. Save in that specific case, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure (see, to that effect, Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraphs 42 to 44; see also Case T‑62/99 Sodima v Commission [2001] ECR II‑655, paragraph 94, and Joined Cases T‑5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II‑5761, paragraph 74).

72 In this case, in any event, the arguments put forward by Polimeri must be regarded as general arguments and would not be capable of establishing that there was an actual breach of its rights of defence, which must be examined by reference to the specific circumstances of each particular case (see, to that effect, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 71 above, paragraph 59, and Hoechst v Commission, cited in paragraph 59 above, paragraph 228).

73 As regards the claim that the second statement of objections contains amendments in relation to the first statement of objections, it must be recalled that that procedural document is inherently provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the parties and subsequent findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (see Bertelsmann and Sony Corporation of America v Impala, cited in paragraph 68 above, paragraph 63 and the case-law cited). Consequently, if the Commission is entitled to amend, both in fact and in law, its arguments between the statement of objections and its final decision, it is a fortiori entitled to do so between two statements of objections.

74 Finally, as regards the fact that the contested decision introduces a change with regard to the quantification of the market for the products concerned, Polimeri’s arguments do not support its plea. By its second plea, Polimeri contests the Commission’s sending of a second statement of objections. By its arguments, Polimeri complains that the Commission did not give it more opportunity to defend itself during the administrative procedure. Polimeri’s arguments in that regard are therefore ineffective.

75 In any event, it must be recalled that, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9; Case C‑176/99 P Arbed v Commission [2003] ECR I‑10687, paragraph 19; and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission, cited in paragraph 71 above, paragraph 32). That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts alleged, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see Arbed v Commission, paragraph 20 and the case-law cited, and Hoechst v Commission, cited in paragraph 59 above, paragraph 421).

76 In this case, it is sufficient to observe that, as the Commission rightly points out, the diminution in value of the market for BR and ESBR was not relied on in the contested decision as constituting inculpatory evidence against the undertakings concerned. In those circumstances, no infringement of Polimeri’s rights of defence can be found to have been committed in that regard. Furthermore, as was recalled in paragraph 73 above, the statement of objections is inherently provisional and subject to amendments both in fact and in law. However, that does not prevent Polimeri from contesting before the Court the quantification of the value of the market in question in the 4th and 10th pleas in support of the present action.

77 In the light of those considerations, the second plea in law raised by Polimeri must be rejected as unfounded.

3. Third plea in law: in essence, infringement of Polimeri’s rights of defence

a) Arguments of the parties

78 Polimeri argues that, in the contested decision, the Commission excludes any direct imputability in the case of Syndial whereas, by contrast, it had addressed both the first and the second statements of objections to it (recital 374).

79 As a result, although Polimeri was not active, during the period from 20 May 1996 to 1 January 2002, in the production and distribution of the products concerned, since it became the transferee of the BR and ESBR business only as from 1 January 2002, the Commission holds it liable for a period of nearly seven years (from 20 May 1996 to 28 November 2002) (recital 373 to the contested decision).

80 In those circumstances, Polimeri did not have the opportunity to respond to the new legal assessment of its liability. There is a difference between its being held liable jointly and severally with the company which, in practical terms, performed the acts constituting the infringement and having imposed on it sole liability for that infringement in respect of the whole of the period covered by the alleged cartel. The non-inclusion of Syndial among the addressees of the contested decision therefore had a significant impact on Polimeri’s position and on its defensive strategy.

81 The Commission contends that the plea should be rejected. It points out that, contrary to what Polimeri maintains, it had imputed to it, in both statements of objections, liability covering the whole period of the cartel. The fact that that liability may also be imputed, jointly and severally, to Syndial cannot have influenced Polimeri’s line of defence. Furthermore, Polimeri does not show how Syndial’s being found jointly and severally liable could have led to a different outcome of the proceeding.

b) Findings of the Court

82 By its third plea in law, Polimeri effectively claims an infringement of its rights of defence, in so far as the Commission did not enable it to submit its comments on a possible non-inclusion of Syndial among the addressees of the contested decision.

83 In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts alleged, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively during the administrative procedure brought against it (see the case-law cited in paragraph 75 above).

84 Polimeri’s third plea is founded on the premiss that, in the statements of objections, the Commission found EniChem SpA (now Syndial) liable in respect of the period from 20 May 1996 to 1 January 2002, whereas, in the contested decision, the Commission finds only Polimeri liable, including in respect of the abovementioned period during which it was not active in the production and distribution of the products concerned.

85 First of all, the second statement of objections finds that, in view, in particular, of the transfer of businesses carried out on 1 January 2002 between EniChem SpA and Polimeri and of the fact that those two companies belong to the same undertaking, Polimeri must be held liable for the infringement in respect of the period from 20 May 1996 to 28 November 2002. It follows that the second statement of objections, in line with the contested decision (recitals 365 to 373), finds Polimeri liable for the whole period of the infringement, thus including for the offences committed by EniChem SpA before 1 January 2002.

86 Next, the second statement of objections states that, in so far as EniChem SpA controlled 100% of Polimeri’s capital between 1 January and 20 October 2002, Syndial must be held liable, jointly and severally, for Polimeri’s infringement in respect of that period. It follows that the second statement of objections finds Syndial liable only for a limited period, in its capacity as Polimeri’s parent company between 1 January and 20 October 2002, and not for the entire duration of the infringement.

87 It follows that Polimeri’s premiss is incorrect.

88 In the absence of more detailed arguments, the complaint alleging infringement of Polimeri’s rights of defence in that regard must be rejected.

89 As regards the argument put forward by Polimeri at the hearing, that Syndial’s non-inclusion among the addressees of the contested decision enabled the Commission to ‘avoid’ the upper limit of the fine of 10% of turnover, and assuming that such an argument is admissible despite its lateness, it must be observed that it closely resembles the arguments put forward in the context of the 16th plea. For the reasons set out in paragraphs 313 to 316 below, that argument must be rejected.

90 In the light of those considerations, the third plea in law raised by Polimeri must be rejected as unfounded.

B – The pleas in law relating to the substance of the contested decision

1. Fourth plea in law: incorrect definition of the relevant market

a) Arguments of the parties

91 Polimeri states that, in the contested decision, the Commission joined the two cases relating to BR and ESBR, even though they were separate during the investigation. The examination of that hypothetical combined sector is confined to the production of a table (Table 3 of the contested decision), without any explanatory comment. Polimeri points out that, in the context of concentration procedures, the Commission has always been careful to distinguish between two separate markets. In this case, Polimeri submits that the conditions are not met, either from the technical and commercial point of view or from the point of view of the competition system, for such a joinder to be justified.

92 Firstly, Polimeri states that BR is in competition with natural rubber. It is used in tyres for light and heavy commercial vehicles, mainly for the side wall of the tyre. Providing an analysis in that regard, Polimeri maintains that the market for BR should comprise the sum of the market for BR and part of that for natural rubber. In that context, Polimeri’s market share never exceeded 11.8% between 1996 and 2002. Polimeri points out that, in Table 1 of the contested decision, the Commission omitted all references to market shares, to the total market for BR and to the share of that market not covered by the undertakings concerned. Those data, although questionable according to Polimeri, were included in the second statement of objections. There is therefore no reference in the contested decision to the power of the alleged cartel to influence that market, or to the power of each of the participants. Polimeri adds that the omissions made by the Commission are designed to eliminate factors establishing the questionable nature of its analysis, such as the level of market coverage represented by the undertakings concerned, which was much lower than that originally mentioned in the second statement of objections.

93 Secondly, Polimeri points out that ESBR is the most widely used rubber, suitable for multiple applications without excelling in any. The most important area of application is the production of tyre treads. However, there is no area of application where ESBR is technically irreplaceable. Providing some analyses in that regard, Polimeri maintains that the market for ESBR should comprise the sum of the market for ESBR and part of that for natural rubber. Within that framework, Polimeri’s market share never exceeded 13.8% between 1996 and 2002. Here too, the market shares for ESBR were omitted in the contested decision, as was the reference to the total market and the quantification of other producers’ sales. Polimeri points out that, as regards other producers’ sales, it disputed the data originally contained in the second statement of objections.

94 Thirdly, while submitting that the markets for BR and ESBR should not have been combined, Polimeri points out that, in the contested decision, the Commission radically altered the valuation of the combined market. Polimeri notes that the valuation of the total market in Table 3 of the contested decision is far lower than that in the table on the same subject in the second statement of objections, whereas the turnover figures for the undertakings concerned remain constant. That difference results from the sales of BR and ESBR attributed to other producers. Thus, according to the contested decision, the alleged cartel seems to control 90% of the market, whereas, in the second statement of objections, it accounted for barely 60% of the market. Polimeri adds that, if the presence of the undertakings concerned on the market for natural rubber, the product which competes with BR and ESBR, were to be taken into consideration, the sphere of influence would be reduced to levels far below 50%.

95 Fourthly, with regard to demand, Polimeri states that BR and ESBR are not used exclusively, as the Commission claims, in tyre production, even though that use is predominant (between 60% and 70%). The significant differences of application which exist between BR and ESBR, apart from tyre production, support the argument that it is wrong to seek to bring the two products together in a combined market or sector. With regard to tyres, five major producers absorb the volumes of BR and ESBR intended for that use. However, none of those major customers obtains its supplies from a single synthetic rubber producer. Furthermore, the Commission itself acknowledges that many tyre manufacturers have their own synthetic rubber production and also purchase supplies of natural rubber on a large scale. It follows that the contractual power of the tyre manufacturers is significant compared with that of the rubber producers and that the degree of market transparency created by the tyre manufacturers at the negotiating stage is high. Those factors undermine the credibility of the existence of any agreement between the producers. Furthermore, a substantial percentage of contracts (between 40% and 60%) is based on a ‘price formula’ which contains a reference to the price of raw materials. That deprives the quarterly discussions on prices between competitors of any real significance and renders them ineffective.

96 Polimeri adds that, in its pleadings, the Commission quotes incompletely from the order of 16 February 2006 in Case C‑111/04 P Adriatica di Navigazione v Commission, not published in the ECR. In paragraph 32 of that order, the Court of Justice noted that ‘the Court of First Instance admitted that the confused and incomplete definition of the relevant market [might] result in an error in the attribution of liability’. In the present case, the market taken into account enabled the Commission to characterise absolutely neutral conduct as illegal. In particular, there is, as such, no case relating to BR.

97 The Commission contends that the plea should be rejected. It submits, in particular, that the objection to the definition of the market in question is irrelevant as regards the existence of the cartel.

b) Findings of the Court

98 The Commission states, in the contested decision, that initially two case numbers had been assigned. The first referred to Bayer’s application for immunity in relation to BR. The second referred to the application for immunity, also submitted by Bayer, in relation to ESBR. However, the investigation was conducted as a single investigation, and most of the procedural documents (notably the two statements of objections) covered both sectors. Following the first statement of objections, a single case number was used. In both statements of objections and in the contested decision, the Commission concludes that the practices in question constituted a single and continuous infringement (recitals 90 and 91 to the contested decision).

99 By its arguments, Polimeri effectively raises two complaints against the contested decision. Firstly, it submits that the Commission should not have joined the two original proceedings relating to BR and ESBR. Secondly, it challenges the sectoral definition of the market, as relied on by the Commission.

100 As regards the first complaint raised by Polimeri, it must be recalled that the Commission is entitled both to disjoin and to join proceedings for objective reasons (see judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 64 and the case-law cited). In the present case, there is nothing to permit the inference that the joinder of the two original proceedings was not done for objective reasons. In particular, it cannot be disputed that BR and ESBR belong to the same business sector, in view, inter alia, of the physical characteristics and uses of those two products. In addition, it is apparent from the contested decision and from the statements of the undertakings concerned that some of the illegal meetings in question related both to BR and to ESBR. In those circumstances, Polimeri’s arguments cannot call into question the choice made by the Commission in that regard. Furthermore, even if the infringement in question can be regarded as in fact covering two distinct infringements, whether those infringements are established in a number of decisions or in a single decision is of no account, since it is established in this case that the infringements in question are not time-barred (see, to that effect, Prym and Prym Consumer v Commission, paragraph 63, and Joined Cases T-101/05 and T-111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraph 158). In particular, there is nothing to support a finding that, as a result of the joinder of those proceedings, the Commission wrongly imputed an infringement to Polimeri. Indeed, an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When, as in this case, the different actions form part of an overall plan because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (Aalborg Portland and Others v Commission, cited in paragraph 51 above, paragraph 258).

101 As regards the second complaint raised by Polimeri, it is sufficient to observe that the objection to the definition of the relevant market is ineffective in the context of the fourth plea, since it cannot, on its own, lead to the conclusion that the conditions for the application of Article 81(1) EC have not been satisfied. Polimeri cannot therefore infer therefrom that it did not participate in the cartel (see, to that effect, order in Adriatica di Navigazione v Commission, cited in paragraph 96 above, paragraph 30; see also, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 172). In particular, there is nothing to support a finding that, as a result of the definition of the relevant market, the Commission wrongly imputed an infringement to Polimeri. It must be pointed out in that regard that the contested decision clearly finds Polimeri responsible as regards both BR and ESBR. In those circumstances, the fact that the Commission found that there was a single infringement in respect of those two products cannot lead to the imputation to Polimeri of an infringement for which it should not be held responsible. However, that does not prevent Polimeri from challenging the definition of the relevant market in the context of the 10th plea, relating to the assessment of the gravity of the infringement.

102 In the light of those considerations, the fourth plea in law raised by Polimeri must be rejected as unfounded.

2. Fifth plea in law: the trend of prices during the period in question

a) Arguments of the parties

103 Polimeri states that, in the first statement of objections, the Commission had set out a price trend analysis for the BR and ESBR markets. In the second statement of objections, and subsequently in the contested decision, the Commission withdrew the part relating to ‘economic evidence’ for the infringement. There was thus an implicit admission that the alleged infringement did not produce any actual effect. Polimeri points out that the omission followed upon a detailed analysis, provided by Syndial during the administrative procedure, which it attaches to the application. That analysis demonstrates that the prices charged do not follow a logic of control and alignment and that the alleged coordination of prices, if it was apparent, actually represents the producers’ reaction to the cost of raw materials and to the market trend.

104 The explanation given by the Commission in recitals 275 to 280 to the contested decision, in response to the analysis provided by Syndial, is not convincing. Polimeri, detailing the calculation of the trend of selling prices on the relevant market, submits that the variations in price levels between the undertakings were too great to be characterised as a ‘high degree of correlation’. Polimeri states, for example, that the increase in EniChem SpA’s prices was more than 30% greater than that in Shell’s prices between the first quarter of 1992 and the third quarter of 1995. As regards the Commission’s criticism that the analysis arbitrarily attributes to all products an identical starting value for the actual price, Polimeri explains that, on the contrary, that analysis shows the effect of the variations on each producer’s initial price, irrespective of the absolute starting value. Polimeri nevertheless acknowledges that, for producers whose complete series of price variations was not available (namely Bayer, Dwory and Kaučuk), the starting point of the series was fixed in relation to a cumulative price variation equal to that of EniChem SpA. However, in no case does that involve the attribution of an actual price to the producer and any other choice would have led to the same result. Finally, Polimeri points out that it has never asserted that the butadiene cost is the only factor determining the final price of BR and ESBR, although it is the main factor.

105 Polimeri adds – an observation which also applies to the sixth plea – that the failure to demonstrate the effects of the alleged cartel constitutes a failure to investigate and contributes to the devaluing of the evidence otherwise collected. Polimeri also points out that, in 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 245, the Court, referring to Case T‑30/91 Solvay v Commission [1995] ECR II‑1775 and Case T‑36/91 ICI v Commission [1995] ECR II‑1847, found that, in those judgments, ‘on account of the weakness of the documentary evidence ..., the Court [had] held that the Commission should, in order to prove to the requisite legal standard the concerted practice alleged against ICI and Solvay, have been prompted to make an overall and detailed economic assessment, in the statement of objections, in particular of the relevant market and the size and conduct of the undertakings active on that market’.

106 The Commission contends that the plea should be rejected. It points out that it is not necessary to take account of the concrete effects of an agreement for the purposes of applying Article 81(1) EC when it has as its object the prevention, restriction or distortion of competition. The Commission adds – a remark which also applies to the sixth plea – that the existence of the cartel is irrefutably demonstrated by a number of precise and consistent factors fully set out in the contested decision.

b) Findings of the Court

107 As a preliminary point, it must be observed that, by its arguments, Polimeri calls into question the Commission’s finding of the existence of a cartel between the undertakings concerned. Polimeri submits, in essence, that the prices charged were not prompted by coordination, but resulted, in particular, from the trend in the cost of raw materials and the market trend.

108 According to settled case-law, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition (Commission v Anic Partecipazioni, cited in paragraph 50 above, paragraphs 122 and 123; Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 491; and Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 84). As regards, in particular, agreements of an anti-competitive nature which, as in the present case, are reached at meetings of competing undertakings, the Court of Justice has already held that Article 81(1) EC is infringed where those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market (Limburgse Vinyl Maatschappij and Others v Commission, paragraphs 508 and 509; Sumitomo Metal Industries and Nippon Steel v Commission, cited in paragraph 51 above, paragraph 47; and Dalmine v Commission, paragraph 84). In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for the undertaking concerned to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 155; Aalborg Portland and Others v Commission, cited in paragraph 51 above, paragraph 81; and Sumitomo Metal Industries and Nippon Steel v Commission, cited in paragraph 51 above, paragraph 47).

109 In this case, it is apparent from the contested decision that the proof of the concerted action between the undertakings is based not on a mere finding of parallel market conduct but on documents which show that the practices in question were the result of concerted action. In those circumstances, the alternative explanation given by Polimeri as regards the prices charged is not such as to call into question the Commission’s finding of the existence of a cartel between the undertakings concerned (see, to that effect, PVC II, cited in paragraph 52 above, paragraphs 727 and 728).

110 In the light of those considerations, the fifth plea in law raised by Polimeri must be rejected as unfounded.

3. Sixth plea in law: the supply of the main customers

a) Arguments of the parties

111 According to Polimeri, it is difficult to comprehend the significance and impact of Michelin’s intervention. The latter has not even attempted to demonstrate that the parallel pricing observed in 1995 continued during the subsequent years. Moreover, Polimeri states that Michelin was supplied by four producers for BR and by six producers for ESBR. It is apparent from an analysis sent to the Commission during the administrative procedure that the supplies made by EniChem SpA could not form part of an allocation or ‘no challenge’ plan. That is apparent in particular from the variations in the volumes attributed to each of the tyre manufacturers during the period from 1997 to 2003.

112 The Commission contends that the plea should be rejected. It reiterates that it was not necessary to take account of the actual effects of the agreement, since its object was to restrict competition.

b) Findings of the Court

113 As a preliminary point, it must be observed that, by its arguments, Polimeri calls into question the Commission’s finding that there was a cartel between the undertakings concerned. Polimeri submits, in essence, that the supply of the main customers was not subject to any coordination, as is shown by the variations in sales volumes.

114 For the same reasons as those set out in the context of the fifth plea, in paragraphs 107 to 109 above, the arguments advanced by Polimeri are not capable of calling into question the Commission’s finding that there was a cartel between the undertakings concerned.

115 In the light of those considerations, the sixth plea in law raised by Polimeri must be rejected as unfounded.

4. Seventh plea in law: unlawful imputation of the infringement to Polimeri

a) Arguments of the parties

116 Polimeri maintains that, if it is found to have participated in the cartel, which it denies, the Commission should have distinguished between Syndial’s and its own liability according to the respective periods when they managed the BR and ESBR businesses (that is from 20 May 1996 to 31 December 2001 in the case of Syndial and from 1 January 2002 to 28 November 2002 in the case of Polimeri). It refers in that regard to the principle developed by the case-law that it falls, in principle, to the natural or legal person managing the undertaking in question when the infringement of the Community competition rules was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking (Case C-279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78, and Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 38). The Commission acknowledges that principle in recital 337 to the contested decision. However, Polimeri points out that, in the following recital, the Commission decided to assign all liability for the infringement to it, including in respect of the period when Syndial was active in the sectors in question, and releases Syndial from any liability.

117 The Commission justifies its choice, in recitals 367 to 369 to the contested decision, by invoking the economic continuity test and referring to the judgment in Aalborg Portland and Others v Commission, cited in paragraph 51 above. However, in that judgment, the Court of Justice also found that there were structural links between the transferor and the transferee, that is to say, the one controlled 50% of the other. Polimeri adds that, in that case, the transferee company, Aalborg, was nothing but an ad hoc creation for the purposes of the infringement, in order to take over the parent company’s operations in the cement sector. In this case, Polimeri has existed as a company since 1995 and, while the BR and ESBR producers were concluding (according to the Commission) anti-competitive agreements, it was dealing in polyethylenes (not in elastomers) in a perfectly legitimate way. Unconsidered use of the ‘same economic entity’ test in order to transfer liability from the transferor to the transferee undertaking could, absurdly, lead, inter alia, to disregard of the principle that punishment should be applied only to the offender (Opinion of Advocate General Ruiz-Jarabo Colomer in Aalborg Portland and Others v Commission, cited in paragraph 51 above, ECR I‑133). If the Commission wishes to transfer liability, it should refer to other factors. In this case, the Commission claims in particular, firstly, that the transfer of businesses which took place on 1 January 2002 involved the transfer to Polimeri of Syndial’s main businesses and its staff, secondly, that, at the time of the transfer of businesses, Syndial’s corresponding turnover had decreased and there was therefore a serious risk that Syndial would no longer have sufficient assets to be able to pay the fine and, thirdly, that, following the transfer, Polimeri participated in the meetings of the European Synthetic Rubber Association through the same person belonging to the staff of EniChem SpA. However, the first and third arguments are not relevant for the purpose of justifying a transfer of liability. Polimeri points out in that regard that those factors are also present in the relationship between Dow and Shell and did not result in Dow’s being held liable for the infringement committed by Shell prior to the transfer of the business. As regards the second argument put forward by the Commission, it is irrelevant from a legal point of view, unless it is demonstrated that the company is bankrupt, which is not the case with Syndial, which continues to exist today. Furthermore, that argument is even less credible given that, in this case, the Commission imposed joint and several liability in order to avoid any risk of non-payment. Polimeri adds that EniChem SpA’s control of Polimeri for 10 years after the transfer of the businesses was only a provisional solution, before control was exercised by the holding company.

118 Polimeri concludes that the economic continuity test was applied in this case in breach of the principle that punishment should be applied only to the offender, in a manner not consistent with the Community case-law, without an adequate statement of reasons, and in a discriminatory manner.

119 The Commission contends that the plea should be rejected. It maintains, in particular, that there was economic continuity between the transferor company involved in the cartel (EniChem SpA/Syndial) and the transferee company (Polimeri).

b) Findings of the Court

120 As was pointed out in paragraph 4 above, Eni’s business in relation to the products concerned was originally carried out by to EniChem Elastomeri, indirectly controlled by Eni through its subsidiary EniChem SpA. On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including the business concerned with the products in question) to its wholly-owned subsidiary, Polimeri. Eni has controlled Polimeri directly and fully since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial (recitals 26 to 32 to the contested decision).

121 In the contested decision, the Commission states that there are structural links between EniChem SpA (now Syndial) and Polimeri, since those companies belong to the same undertaking. In this case, it concludes that Polimeri should be held liable for the infringement committed by Syndial, even though the latter company remains in existence (recitals 338, 368 and 369 to the contested decision).

122 The Commission adds that Polimeri’s liability is also supported by the fact, firstly, that EniChem SpA was Polimeri’s only shareholder before and after the transfer of the businesses in question and that that transfer did not give rise to any actual payment. Secondly, EniChem SpA’s assets and turnover decreased considerably after that transfer and that company’s activities were limited. Finally, the employee who participated in the infringement for EniChem SpA continued to participate in that infringement for Polimeri (recitals 369 to 373 to the contested decision).

123 In that regard, it must be recalled that, when an entity engaged in an economic activity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Commission v Anic Partecipazioni, cited in paragraph 50 above, paragraph 145; Cascades v Commission, cited in paragraph 116 above, paragraph 78; and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39).

124 However, where two entities constitute the same economic unit, the fact that the entity which committed the infringement still exists does not in itself preclude the entity to which it transferred its economic activities from being subject to a penalty (see, to that effect, Aalborg Portland and Others v Commission, cited in paragraph 51 above, paragraphs 355 to 358, and Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 132).

125 Applying penalties in this way is permissible in particular where those entities have been subject to control by the same person and have therefore, given the close economic and organisat