Judgment of the General Court (Eighth Chamber) of 16 September 2013 — Repsol Lubricantes y Especialidades and Others v Commission

(Case T‑496/07)

‛Competition — Agreements, decisions and concerted practices — Spanish market for penetration bitumen — Annual market-sharing and price-fixing agreements — Rights of defence — Imputability of the unlawful conduct — Principle that penalties must be specific to the offender — Calculation of the amount of the fine — Res judicata’

1. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the hearing — Inadmissibility (Rules of Procedure of the General Court, Art. 48(2), first para.) (see para. 102)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Imputation of the practices of a subsidiary to its parent company — Need for an express statement of reasons (Arts 81 EC and 253 EC) (see paras 107-110)

3. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof (Art. 81 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2)) (see paras 130-136, 143)

4. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — No infringement of principle that penalties should be individual to the offender (Art. 81 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2)) (see paras 147-151)

5. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Liability of parent company not capable of being regarded as no-fault liability (Art. 81 EC) (see para. 152)

6. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption (Art. 81 EC) (see paras 156-158, 166, 179-182, 186, 189, 196, 197, 204, 207)

7. Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No requirement to determine their impact and their geographical extent (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 236, 237)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Effective capacity to cause significant damage to competition on the market concerned — Relevance of the market shares of the undertaking concerned (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) (see paras 254, 255)

9. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Conduct deviating from that agreed within the cartel — Assessment (Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03, point 3, second indent) (see para. 265)

10. Competition — Fines — Amount — Determination — No obligation of the Commission to adhere to its previous decision-making practice (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) (see paras 267-270, 311)

11. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader in the infringement — Concept — Criteria for assessment (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 288-294)

12. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Account taken of the chronological element of the cooperation provided — Scope (Council Regulation No 17, Art. 15(2); Commission Notice 2002/C 45/03, points 21 and 23(b)) (see paras 334, 382-385, 397)

13. Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Condition — Action capable of procuring a benefit for the party bringing it — Scope (Art. 230 EC) (see para. 336)

14. Competition — Administrative procedure — Statement of objections — Provisional nature — No obligation on the Commission to explain in the final decision the differences between the latter and its provisional assessments (Art. 81 EC) (see para. 337)

15. Competition — Fines — Amount — Determination — Commission notice on the non-imposition or reduction of fines in cartel cases in return for the cooperation of the fined undertakings — Binding upon the Commission (Council Regulation No 17, Art. 15(2); Commission Notice 2002/C 45/03) (see para. 360)

16. Actions for annulment — Judgment annulling a measure — Scope — Absolute authority of res judicata — Scope — Both operative part and grounds to be taken into account (see paras 445, 446, 451-453, 455)

17. Actions for annulment — Judgment annulling a measure — Effects — Annulment of a Commission decision finding a breach of the competition rules — Effects in relation to addressees who have not brought an action — Account taken by the Court in the action brought by the parent company of the outcome of the action brought by the subsidiary (Arts 81 EC and 230 EC) (see paras 447, 448)

Re:

APPLICATION for annulment of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP-38.710 Bitumen (Spain)), and for reduction in the amount of the fine imposed on the applicant in that decision.

Operative part

The Court:

1. Dismisses the action;

2. Dismisses the claim of the European Commission seeking an increase of the amount of the fine;