Case C-508/11 P

Eni SpA

v

European Commission

‛Appeal — Competition — Agreements, decisions and concerted practices — Butadiene rubber and emulsion styrene butadiene rubber market manufactured by emulsion polymerisation — Attributability of unlawful conduct of subsidiaries to their parent companies — Presumption of the actual exercise of a decisive influence — Obligation to state reasons — Gravity of the infringement — Multiplier for deterrence — Actual impact on the market — Aggravating circumstances — Repeated infringements’

Summary — Judgment of the Court (First Chamber), 8 May 2013

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply the competition rules — Failure to take into account that the factual and legal elements were not disputed in a Statement of Objections by the addressee undertaking during the administrative procedure

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply the competition rules — No possiblity, during the proceedings, for the Commission to adduce grounds not appearing in its decision

Competition — European Union rules — Infringements — Attribution — Parent company and subsidiaries — Point in time to be taken into consideration — Moment of performance of the infringement — Subsidiary having ceded part of its activities to another company in the group subsequent to the infringement or having ceased to exist after the infringement — No effect on the liability of the parent company

Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Aggregated turnover of all the companies forming the economic entity acting as an undertaking

Appeals — Jurisdiction of the Court — Challenge on grounds of fairness to the General Court’s assessment concerning the amount of a fine imposed on an undertaking — Not included

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria — Commission’s margin of discretion — Taking into consideration the actual effect on the market — Criterion leading to an increase in the amount of the fine, provided it is quantifiable

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply the competition rules — Decision imposing a fine and applying a multiplier on the ground of repeated infringement — Reference, by ways of grounds, to earlier Commission decisions not addressed to the applicant — Unlawful

Competition — European Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of a decisive influence exercised by the parent company over its wholly-owned subsidiaries, including holding companies — Taking into account while respecting the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender and the principle of legal certainty and the principle of equality of arms — Rebuttable nature — Burden of proof

Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility — Ground of appeal seeking solely to contest the merits of the judgment under appeal — Admissibility

See the text of the decision. (see paras 41, 62)

In the field of competition law, in the particular case in which a parent company holds all or almost all of the capital in a subsidiary which has committed an infringement of the European Union competition rules, including the case where a holding company holds 100% of the capital of an interposed company which, in turn, holds the entire capital of a subsidiary of its group which has committed an infringement of European Union competition law, there is a rebuttable presumption that that parent company exercises an actual decisive influence over its subsidiary and, where there is a holding company, over the conduct of the interposed company and of that subsidiary. That presumption seeks to find a balance between the importance, on the one hand, of the objective of penalising conduct contrary to the competition rules and to prevent its repetition and, on the other, the requirements of certain general principles of European Union law, such as, in particular, the principles of the presumption of innocence, that penalties should be applied only to the offender, legal certainty and the rights of the defence, including the principle of equality of arms. It is for the parent company to rebut that presumption by proving that it and its subsidiary did not form a single undertaking, for the purpose of Article 101 TFEU, which committed the infringement in question. To that end, the parent company must show that it refrained from exercising an actual decisive influence over the subsidiary, as regards not only operational matters but also financial matters. The fact that the subsidiary enjoyed a certain autonomy or that the parent company did not directly participate in the infringement or encouraged it to be committed is not sufficient in itself to rebut the presumption and to establish that the parent company and its subsidiary did not form a single undertaking within the meaning of Article 101 TFEU. In addition, the fact that the parent company was ‘merely’ a technical and financial coordinator or that it provided those undertakings with financial and investment assistance shows that it did not refrain from exercising a decisive influence over its subsidiaries. (see paras 46-48, 50, 63-69)

See the text of the decision. (see paras 51, 74, 84, 102)

The statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review. Thus, as regards the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged. It follows therefrom that the Commission, when imposing a fine on a company for an infringement of the European Union competition rules and when applying, in calculating the fine, a multiplier to take account of the fact that that company had already been involved in an infringement of the competition rules, is required to provide, with the decision imposing the fine, a statement of reasons enabling the European Union Courts and that company to understand in what capacity and to what extent it was involved in the earlier infringement. In particular, if the Commission considers that that company was part of the addressee undertaking of the decision relating to the earlier infringement, it is for the Commission to give sufficient proper reasons for that assertion. That requirement is not met where the Commission, in its Statement of Objections, indicates that it will take into account previous findings of similar infringements, referring in that regard to earlier decisions of which the appellant was not an addressee. (see paras 71, 126, 127, 129-131)

See the text of the decision. (see para. 82)

See the text of the decision. (see paras 96-98)

See the text of the decision. (see paras 102, 103)

See the text of the decision. (see para. 105)

The 10% of turnover limit laid down in Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the aggregated turnover of all the companies comprising the economic unit that acted as an undertaking for the purposes of Article 101 TFEU. (see para. 109)

In the field of competition law, the decisive factor for a finding of an undertaking’s liability and, accordingly, the liability of the parent company for the infringement of the competition rules is the fact that a company which was part of a group of companies inculpated for such an infringement was directly involved in the infringement in question, at least until the transfer of its business to another company in the group, and that, when it was directly involved in the infringement, it was controlled by the group’s parent company. However, it is irrelevant that, in the case of a succession of undertakings, the company which was the author of the infringement ceased to exist at the economic and/or legal level. (see para. 111)

The statement of reasons required by Article 296 TFEU must, in principle be notified to the person concerned at the same time as the decision adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the European Union courts. (see para. 128)