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

(Case T-168/05)

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

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

2. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary – Applicability of the presumption where the parent company holds nearly all the capital of the subsidiary (Arts 81 EC and 82 EC) (see paras 67-70, 74-77, 81-82, 100)

3. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned or part-owned subsidiaries (Arts 81 EC and 82 EC) (see paras 89-92, 115)

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

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

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

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

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

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

Re:

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

Operative part

The Court:

1. Dismisses the action;