Parties

Grounds

Operative part



Parties

In Case T‑541/08,

Sasol, established in Rosebank (South Africa),

Sasol Holding in Germany GmbH, established in Hamburg (Germany),

Sasol Wax International AG, established in Hamburg,

Sasol Wax GmbH, established in Hamburg,

represented by W. Bosch, U. Denzel, C. von Köckritz, lawyers,

applicants,

v

European Commission, represented by F. Castillo de la Torre and R. Sauer, acting as Agents, and by M. Gray, Barrister,

defendant,

APPLICATION, primarily, for annulment in part of the Commission’s decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle waxes) and, in the alternative, for annulment or reduction of the fine imposed on the applicants,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 3 July 2013,

gives the following

Judgment

Grounds

Background to the dispute

1. Administrative procedure and adoption of the contested decision

1. By Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes) (‘the contested decision’), the Commission of the European Communities found that the applicants, Sasol Wax GmbH, Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol (which is hereinafter referred to as ‘Sasol Ltd’) (the applicants together ‘Sasol’), with other undertakings, infringed Article 81(1) EC and Article 53(1) of the EEA Agreement, by participating in a cartel concerning the paraffin waxes market in the EEA and the German slack wax market.

2. The addressees of the contested decision are, as well as Sasol, the following companies: ENI SpA; Esso Deutschland GmbH, Esso Société anonyme française, ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil Corp. (together ‘ExxonMobil’); H & R ChemPharm GmbH, H & R Wax Company Vertrieb GmbH and Hansen & Rosenthal KG (together ‘H & R’); Tudapetrol Mineralölerzeugnisse Nils Hansen KG; MOL Nyrt. (‘Mol’); Repsol YPF Lubricantes y Especialidades SA, Repsol Petróleo SA and Repsol YPF SA (together ‘Repsol’); Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, the Shell International Petroleum Company Ltd, the Shell Petroleum Company Ltd, Shell Petroleum NV and the Shell Transport and Trading Company Ltd (together ‘Shell’); RWE Dea AG and RWE AG (together ‘RWE’); and also Total SA and Total France SA (together ‘Total’) (recital 1 in the preamble to the contested decision).

3. Paraffin waxes are manufactured in refineries from crude oil. They are used for the production of products such as candles, chemicals, tyres and automotive products as well as in the rubber, packaging, adhesive and chewing-gum industries (recital 4 of the contested decision).

4. Slack wax is the raw material required for the manufacture of paraffin waxes. It is produced in refineries as a by-product in the manufacture of base oils from crude oil. It is also sold to end-customers, to producers of particle boards for instance (recital 5 of the contested decision).

5. The Commission began its investigation after Shell Deutschland Schmierstoff informed it, by letter of 17 March 2005, of the existence of a cartel and submitted an application to it for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) (recital 72 of the contested decision).

6. On 28 and 29 April 2005, the Commission carried out, pursuant to Article 20(4) 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), on-site inspections at the premises of ‘H & R/Tudapetrol’, ENI, MOL and also at those of the companies in the Sasol, ExxonMobil, Repsol and Total groups (recital 75 of the contested decision).

7. Between 25 and 29 May 2007, the Commission sent a statement of objections to each of the companies listed in paragraph 2 above and thus also to the applicants (recital 85 of the contested decision). By letter of 13 August 2007, Sasol Wax and Sasol Wax International replied jointly to the statement of objections. By another letter of the same date, Sasol Holding in Germany and Sasol Ltd also replied jointly to the statement of objections.

8. On 10 and 11 December 2007, the Commission held a hearing in which the applicants took part (recital 91 of the contested decision).

9. In the contested decision, in the light of the evidence available to it, the Commission considered that the addressees, which constituted the majority of the producers of paraffin waxes and slack wax in the EEA, had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the EEA territory. That infringement consisted in agreements or concerted practices aimed at price fixing, and exchanging and disclosing commercially-sensitive information affecting paraffin waxes (‘the principal part of the infringement’). In the case of RWE (later Shell), ExxonMobil, MOL, Repsol, Sasol and Total, the infringement affecting paraffin waxes also consisted of customer and/or market allocation (‘the second part of the infringement’). Furthermore, the infringement committed by RWE, ExxonMobil, Sasol and Total, also related to slack wax sold to end-customers on the German market (‘the slack-wax part of the infringement’) (recitals 2, 95 and 328, and Article 1 of the contested decision).

10. The unlawful practices took shape at anti-competitive meetings called ‘technical meetings’ or sometimes ‘Blauer Salon’ meetings of the participants and at ‘slack wax meetings’ devoted specifically to questions relating to slack wax.

11. The fines imposed in this case were calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’), in force at the time the statement of objections was notified to the companies in paragraph 2 above.

12. The contested decision includes, in particular, the following provisions:

‘ Article 1

The following undertakings have infringed Article 81(1) [EC] and — from 1 January 1994 — Article 53 [EEA] by participating, for the periods indicated, in a continuing agreement and/or concerted practice in the paraffin waxes sector in the common market and, as of 1 January 1994, within the EEA:

…

Sasol Wax GmbH: from 3 September 1992 to 28 April 2005;

Sasol Wax International AG: from 1 May 1995 to 28 April 2005;

Sasol Holding in Germany GmbH: from 1 May 1995 to 28 April 2005;

Sasol [Ltd]: from 1 May 1995 to 28 April 2005;

…

For the following undertakings, the infringement also includes slack wax sold to end-customers on the German market for the periods indicated:

…

Sasol Wax GmbH: from 30 October 1997 to 12 May 2004;

Sasol Wax International AG: from 30 October 1997 to 12 May 2004;

Sasol Holding in Germany GmbH: from 30 October 1997 to 12 May 2004;

Sasol [Ltd]: from 30 October 1997 to 12 May 2004;

…

Article 2

For the infringement referred to in Article 1, the following fines are imposed:

ENI SpA: EUR 29 120 000;

Esso Société Anonyme Française: EUR 83 588 400,

of which jointly and severally with

ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil [Corp.]: for EUR 34 670 400, of which jointly and severally with Esso Deutschland GmbH for EUR 27 081 600;

Tudapetrol Mineralölerzeugnisse Nils Hansen KG: EUR 12 000 000;

Hansen & Rosenthal KG jointly and severally with H & R Wax Company Vertrieb GmbH: EUR 24 000 000,

of which jointly and severally with

H & R ChemPharm GmbH for EUR 22 000 000;

MOL Nyrt.: EUR 23 700 000;

Repsol YPF Lubricantes y Especialidades SA jointly and severally with Repsol Petróleo SA and Repsol YPF SA: EUR 19 800 000;

Sasol Wax GmbH: EUR 318 200 000,

of which jointly and severally with

Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol [Ltd] for EUR 250 700 000;

Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited, the Shell Petroleum Company Limited, Shell Petroleum NV and the Shell Transport and Trading Company [Ltd]: EUR 0;

RWE-Dea AG jointly and severally with RWE AG: EUR 37 440 000;

Total France SA jointly and severally with Total SA: EUR 128 163 000.’

2. The structure of the Sasol group and Vara and the imputation of liability to the parent companies in the contested decision

13. In recital 449 of the contested decision, the Commission first identified, as regards the Sasol group, the company directly responsible for the infringement. Thus it found that persons attending the technical meetings were employed by Hans-Otto Schümann GmbH & Co. KG (‘HOS’) from the beginning of the infringement, on 3 September 1992, until 30 April 1995. From 1 May 1995 until 31 December 2002, it was Schümann Sasol GmbH & Co. KG, which, in 2000, became Schümann Sasol GmbH (together ‘Schümann Sasol’). From 1 January 2003 onwards, the employer was Sasol Wax.

14. Consequently, in recital 452 of the contested decision, Sasol Wax, the successor of HOS and Schümann Sasol, was found liable for direct participation in the infringement for the period from 3 September 1992 to 28 April 2005.

15. The Commission also examined the development over time of the holdings in HOS, Schümann Sasol and Sasol Wax. In that regard, it distinguished between three periods (recital 454 of the contested decision).

16. As regards the first period, from 3 September 1992 to 30 April 1995 (‘the Schümann period’), the Commission found that HOS was ultimately controlled by Mr Schümann personally, through Vara Holding GmbH & Co. KG (‘Vara’), which was the only limited partner in HOS (recitals 450 and 457 of the contested decision). Mr Schümann had a majority shareholding in Vara, the other shareholders being members of his family. In the contested decision, neither Vara nor Mr Schümann was held liable for the infringement committed by HOS.

17. The second period lasted from 1 May 1995 to 30 June 2002 (‘the joint venture period’). On 1 May 1995, Sasol Ltd acquired two thirds of HOS. Following a reorganisation, HOS became Schümann Sasol and continued to be the company directly liable for the infringement. Schümann Sasol was a 99.9% subsidiary of Schümann Sasol International AG, one third of which was still held by Vara and, ultimately, by the Schümann family. Two thirds of Schümann Sasol International was held by Sasol Holding in Germany, itself a wholly owned subsidiary of Sasol Ltd. For this period, the Commission held the following companies jointly and severally liable: Sasol Wax (as the legal successor of Schümann Sasol), Sasol Wax International (as the legal successor of Schümann Sasol International, parent company of Schümann Sasol), Sasol Holding in Germany (as the parent company holding two thirds of the shares in Schümann Sasol International) and Sasol Ltd (as the parent company of Sasol Holding in Germany) (recitals 451 and 478 of the contested decision). It considered that the last three companies had exercised decisive influence over Schümann Sasol (recital 453 of the contested decision). Neither Vara, which held one third of Schümann Sasol International, nor the Schümann family, which owned Vara, was found liable for the infringement committed by Schümann Sasol, which was then owned by Schümann Sasol International (‘Schümann Sasol International’ or ‘the joint venture’), the company owned jointly by Vara and the Sasol group.

18. The third period ran from 1 July 2002 to 28 April 2005, the date on which the infringement ended (‘the Sasol period’). On 30 June 2002, the Sasol group acquired the remaining one third of Schümann Sasol International, which had until then been owned by Vara. Schümann Sasol was renamed Sasol Wax and remained the subsidiary of Schümann Sasol International, which in turn was renamed Sasol Wax International. Sasol Wax International was then wholly owned by Sasol Holding in Germany and, ultimately, by Sasol Ltd. For that period, the Commission held the four applicants jointly and severally liable for the infringement committed by Sasol Wax, as it considered that the first three applicants had exercised a decisive influence over Sasol Wax (recitals 451 and 453 of the contested decision).

Procedure and forms of order sought

19. By application lodged at the Court Registry on 15 December 2008, the applicants brought the present action.

20. Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure. In the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court requested the parties to reply in writing to certain questions and to produce certain documents. The parties complied with that request within the prescribed period.

21. The parties presented oral argument and replied to questions put by the Court at the hearing on 3 July 2013.

22. In the light of the factual links with Case T‑540/08 Esso and Others v Commission , Case T‑543/08 RWE and RWE Dea v Commission , Case T‑544/08 Hansen & Rosenthal and H & R Wax Company Vertrieb v Commission , Case T‑548/08 Total v Commission , Case T‑550/08 Tudapetrol v Commission , Case T‑551/08 H & R ChemPharm v Commission , Case T‑558/08 ENI v Commission , Case T‑562/08 Repsol Lubricantes y Especialidades and Others v Commission and Case T‑566/08 Total Raffinage Marketing v Commission , and the similarity and difficulty of the legal issues raised, the Court decided to reserve judgment in those related cases until after the last hearing, namely that of 3 July 2013 held in the present case.

23. In the application, the applicants claim that the Court should:

– principally, annul the contested decision in so far as it relates to them;

– in the alternative, annul or reduce in an appropriate manner the fine imposed on them in the contested decision;

– order the Commission to pay the costs.

24. The Commission contends that the Court should:

– dismiss the action in its entirety, including the claims in the alternative;

– order the applicants to pay the costs.

Law

25. In support of their action, the applicants put forward seven pleas in law. The first plea alleges that Sasol Ltd, Sasol Holding in Germany and Sasol Wax International were wrongly found liable for the infringement committed by Schümann Sasol during the joint venture period. The second plea alleges that Sasol Ltd, Sasol Holding in Germany and Sasol Wax International were wrongly found liable for the infringement committed by Sasol Wax during the Sasol period. The third plea alleges a failure to have regard to the principle of equal treatment in that the Commission did not find Vara jointly and severally liable for the Schümann period and the joint venture period. The fourth plea alleges incorrect determination of the basic amount of the fine. The fifth plea alleges that Sasol was wrongly assumed to hold a leading role. The sixth plea alleges that the same cap was unlawfully placed on the amount of the fine as regards the different periods of the infringement. The seventh plea alleges unlawful failure to grant full immunity to Sasol with regard to certain parts of the fine.

1. The first plea, alleging that Sasol Ltd, Sasol Holding in Germany and Sasol Wax International were wrongly found liable for the infringement during the joint venture period

26. The applicants submit that the Commission wrongly concluded that Sasol Ltd, via its 100% subsidiary Sasol Holding in Germany, alone exercised decisive influence over Schümann Sasol International and wrongly found Sasol Ltd, Sasol Holding in Germany and Sasol Wax International liable for the joint venture period. The organisational, financial and legal relationships between Schümann Sasol and the aforementioned companies, on which the Commission relied in the contested decision, do not support such a conclusion.

27. The applicants submit, principally, that Vara, the other parent company, alone exercised a decisive influence over Schümann Sasol International during the joint venture period. In the alternative, they submit that that decisive influence was exercised jointly by the two parent companies.

28. The Commission responds that Sasol was sanctioned according to its own responsibility and in line with the 2006 Guidelines. Moreover, it is established case-law that the Commission is not obliged to state reasons why it has not adopted an infringement decision in respect of third parties and that one undertaking cannot challenge a penalty imposed upon it on the ground that another undertaking has not been fined.

Preliminary observations

29. As regards the joint and several liability of a parent company for the conduct of its subsidiary or a joint venture owned by it, the fact that a subsidiary or a joint venture has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company (see, to that effect, Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 132).

30. European Union competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 54, and Joined Cases T‑141/07, T‑142/07, T‑145/07 and T‑146/07 General Technic-Otis and Others v Commission [2011] ECR II‑4977, paragraph 53).

31. The Courts of the European Union have also stated that the concept of an undertaking, in that context, has to be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Akzo Nobel and Others v Commission , cited in paragraph 30 above, paragraph 55 and the case-law cited; and Case T‑234/95 DSG v Commission [2000] ECR II‑2603, paragraph 124). They have emphasised that, for the purposes of applying the competition rules, formal separation of two companies resulting from their having distinct legal identity is not decisive; the test is whether or not there is unity in their conduct on the market. Thus, it may be necessary to establish whether two or more companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market ( Imperial Chemical Industries v Commission , cited in paragraph 29 above, paragraph 140; Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85; and General Technic-Otis and Others v Commission , cited in paragraph 30 above, paragraph 54).

32. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement ( Akzo Nobel and Others v Commission , cited in paragraph 30 above, paragraph 56, and General Technic-Otis and Others v Commission , cited in paragraph 30 above, paragraph 55).

33. The conduct of a subsidiary may be imputed to the parent company, because of their membership of the same undertaking, when that subsidiary does not decide independently upon its own conduct on the market, because it is under the decisive influence of the parent company in that regard, having regard in particular to the economic, organisational and legal links between those two legal entities (see, to that effect, Akzo Nobel and Others v Commission , cited in paragraph 30 above, paragraph 58, and Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 527).

34. A subsidiary’s conduct on the market is under the decisive influence of a parent company in particular where the subsidiary carries out, in all material respects, the instructions given to it by the parent company in that regard ( Imperial Chemical Industries v Commission , cited in paragraph 29 above, paragraphs 133, 137 and 138; see, to that effect, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 27).

35. A subsidiary’s conduct on the market is, as a rule, also under the decisive influence of a parent company when the latter retains only the power to define or approve certain strategic commercial decisions, if necessary by its representatives on the bodies of the subsidiary, whereas the power to define the subsidiary’s commercial policy in the strict sense is delegated to the managers responsible for the subsidiary’s operational management, chosen by the parent company and representing and promoting its commercial interests (see, to that effect, Case T‑25/06 Alliance One International v Commission [2011] ECR II‑5741, paragraphs 138 and 139, confirmed by the order of the Court of Justice of 13 December 2012 in Case C‑593/11 P, not published in the ECR, paragraph 30).

36. When the unity of a subsidiary’s conduct on the market and that of its parent company is ensured, in particular in the circumstances described in paragraphs 34 and 35 above or by other economic, legal organisational links between the companies in question, those companies form a single economic unit and therefore form a single undertaking, in accordance with the case-law referred to in paragraph 31 above. The fact that a parent company and its subsidiary constitute a single undertaking for the purpose of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see, to that effect Akzo Nobel and Others v Commission , cited in paragraph 30 above, paragraph 59).

37. The case-law set out in paragraphs 29 to 36 above is also applicable to the imputation of liability to one or more parent companies for an infringement committed by their joint venture ( General Technic-Otis and Others v Commission , cited in paragraph 30 above, paragraphs 52 to 56).

38. The Court will examine in the light of those rules the applicants’ arguments and the findings in the contested decision concerning the imputation of liability for the infringement at issue to the applicants on account of the conduct of (i) Schümann Sasol and (ii) its parent company Schümann Sasol International, the latter being owned during the joint venture period two thirds by Sasol Holding in Germany and one third by Vara.

Contested decision

39. In the contested decision, the Commission rejected the applicants’ arguments seeking to show that during the joint venture period Schümann Sasol International was actually controlled by Vara. The basis for reaching that conclusion was in essence as follows:

‘…

(471) The Commission considers that Sasol, via its 100%-subsidiary Sasol Holding in Germany GmbH, exercised decisive influence over Schümann Sasol International ...

(472) As explained by Sasol, the management board, responsible for the day-to-day business, consisted of one representative each from Sasol and Vara respectively, plus a chairman. According to the by-laws of the management board, it shall, to the extent possible, pass its resolutions unanimously or otherwise by simple majority. In the event of a tie, the chairman of the management board shall have a casting vote. According to Sasol, the chairman was, for most of the joint venture period, a person representing Vara. Following further investigation, the Commission does not agree with Sasol on this point. The person in question was more likely the chairman due to his knowledge of the business and that it was also Sasol’s wish that he would be chairman of the joint venture. It was important for Sasol, as the majority shareholder, to have a person on the management board who was familiar with the previous business of HOS. The person in question had worked for the German predecessor of Schümann Sasol International … and was thus familiar with the operative business of the company, which would be taken over by Sasol. Moreover, at the time the person in question started as chairman (2 May 1995), he was not employed by Vara. In fact, he was not employed by Vara before 1997. The person was chairman of the joint venture from 2 May 1995 until 30 June 2001, when he was replaced by Mr [D. S. R.] of Sasol.

(473) The supervisory board of the joint venture consisted of six members, four representatives of Sasol and two of Vara. As explained by Sasol, the shareholder and voting rights agreement provided that Sasol and Vara should unanimously decide on resolutions to be passed, with each of them having one decision and consequently Sasol’s majority in the supervisory board would be abolished. If no consensus could be reached, the proposal was deemed to have been rejected. However, the shareholder and voting rights agreement also established in section 3 on resolutions of the supervisory board that section 1 of the agreement shall apply mutatis mutandis . Section 1.5 of the agreement states that if a unanimous decision cannot be reached with regard to the matters referred to in that section (a-d), the proposal of Sasol, for as long as it held more than 50% of the issued share capital in the company, shall prevail and Vara shall vote in accordance with the proposal of Sasol. The matters referred to in subparagraphs a-d of section 1.5 are the following: the establishment of the annual accounts, the appointment of auditors, the appointment of special auditors and the approval of capital investments by the company or any of its affiliated companies.

(474) [As regards the general meeting], Sasol explains that Vara had a blocking minority since the resolutions required a majority of 3/4 of all votes cast and Vara held 1/3 of the votes. In addition, according to Sasol, the shareholder and voting rights agreement provided that Sasol and Vara undertook to take all shareholders actions jointly and to vote unanimously on all matters, with each having one vote and if unanimity could not be reached neither Sasol nor Vara should take action and thus Vara could not be outvoted. However, as explained above, the shareholder and voting rights agreement in section 1.5, which applies to the [general meeting], lists certain matters for which Sasol’s wish shall prevail (see recital (473)).

(475) With regard to the situation described in recitals (472)-(474), and in particular Sasol’s ability to enforce its wish on important strategic decisions, if no consensus could be reached, such as those listed in section 1.5 of the shareholder and voting rights agreement (e.g. approval of capital investments), Sasol must be considered to have been in control of the joint venture. That managers of [Schümann Sasol] had formerly been with HOS, as Sasol argues, does not contradict this finding as the supervisory board’s approval was required for such staffing decisions if they concerned senior management position (section 2(2)(c) of the by-laws of the management board) and Sasol was thus able to veto such decisions.

…

(481) For the reasons stated above, the Commission holds not only the acting company [Schümann Sasol], but also its parent companies Sasol International AG, Sasol Ltd and Sasol Holding in Germany GmbH liable for the joint venture period since it has been established that Sasol was in control of the joint venture … As set out in recitals (329)-(333), different companies belonging to the same group form an economic unit and therefore an undertaking within the meaning of Article 81 [EC] if the companies concerned do not determine independently their own conduct on the market. In the case of a joint venture, it is possible to find that the joint venture and parents together form an economic unit for the purposes of the application of Article 81 [EC] if the joint venture has not decided independently upon its own conduct on the market. Whether or not the joint venture is to be regarded as a full-function joint venture … is irrelevant in this context as … [the] factual evidence demonstrate[s] decisive influence. The fact that the parents of a joint venture can be held liable is in line with the practice of the Commission on this specific issue, following the general legal principles explained in recital (340) set by the Community Courts. The fact that in another case, the Decision was not addressed to parent companies of a joint venture does not mean under these circumstances that Sasol International AG, Sasol Ltd and Sasol Holding in Germany GmbH, as the parent companies within the Sasol group, cannot be held liable for activities of [their] subsidiary, since the Commission enjoys a margin of discretion in deciding which entities of an undertaking it holds liable for an infringement and its assessment is done on a case-by-case basis.’

Distinguishing the concept of control from the actual exercise of decisive influence, as applied in the context of Article 81 EC

40. First of all, the Court points out that when the Commission considered whether the infringement committed by Schümann Sasol, the subsidiary of the joint venture, could be imputed to another company, it did not expressly distinguish between the concepts of ‘control’ and ‘power of control’, on the one hand, and ‘economic unit’ and ‘actual exercise of decisive influence over commercial conduct’, on the other.

41. The applicants submit that that approach is incorrect, given that the concept of control does not signify the actual exercise of decisive influence.

42. In the first place, it must be borne in mind that, according to Article 3(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), ‘[c]ontrol shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking’.

43. According to the case-law, the Commission cannot, in order to impute the anti-competitive conduct of one company to another under Article 81 EC, take as its basis the mere ability to exercise decisive influence (as is the case regarding the application of Regulation No 139/2004 when establishing control), without needing to ascertain whether that influence has actually been exercised ( General Technic-Otis and Others v Commission , cited in paragraph 30 above, paragraph 69).

44. On the contrary, it is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual evidence (see Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136 and the case-law cited). Such evidence includes the accumulation of posts by the same natural persons in the management of the parent company and its subsidiary or joint undertaking (Case T‑132/07 Fuji Electric v Commission [2011] ECR II‑4091, paragraph 184; see also, to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 119 and 120), or the fact that those companies were required to follow the instructions issued by their single management and could not act independently on the market (see, to that effect, HFB and Others v Commission , cited in paragraph 33 above, paragraph 527).

45. In the present case, the Commission did not rely on such a direct demonstration of the exercise of decisive influence by Sasol Ltd and Sasol Holding in Germany over Schümann Sasol International.

46. In essence, the Commission examined the decision-making power which Sasol could exercise in the bodies of the joint venture through its representatives. The analysis in that regard is based essentially on an abstract examination of the decision-making procedures within those bodies, based on the provisions of the shareholders’ agreement and the by-laws of the management board, which reproduced the voting mechanisms in the joint venture’s articles of association. In addition, the Commission bases its conclusion regarding the imputation of liability to Sasol Holding in Germany and Sasol Ltd for the conduct of Schümann Sasol International in particular on the statement that ‘it has been established that Sasol was in control of the joint venture’ (recital 481 of the contested decision).

47. It follows that, in the present case, the Commission concluded that Sasol Ltd and Sasol Holding in Germany exercised decisive influence over the commercial conduct of Schümann Sasol International essentially on the basis of an abstract analysis of the documents signed before Schümann Sasol International began to operate, along the lines of an analysis according to the merger clearance rules.

48. Secondly, the Court is therefore called upon to examine to what extent such an abstract and prospective analysis, carried out in the area of mergers where the adoption of the clearance decision precedes the commencement of the joint venture, may also serve to demonstrate that decisive influence is actually exercised over the commercial conduct of a joint venture in a decision which holds the parent companies liable for the joint venture’s past infringement of Article 81 EC.

49. In that regard, it is apparent from the case-law that, even though the power or possibility to determine the commercial decisions of the joint venture, in itself, relates only to the simple ability to exercise decisive influence over its commercial conduct — and thus falls within the concept of ‘control’ within the meaning of Regulation No 139/2004 — the Commission and the Courts of the European Union may presume that the legislation and the provisions of agreements relating to the operation of that undertaking, in particular the joint venture’s articles of association and the shareholder and voting rights agreement, have been implemented and complied with. To that extent, the examination of whether decisive influence has actually been exercised over the commercial conduct of the joint venture may consist in an abstract analysis of the documents signed before it began to operate, along the lines of an analysis of control. In particular, when the legislation in question and the contractual provisions envisage that the votes of each parent company were necessary for a resolution to be passed by a body of the joint venture, the Commission and the Courts of the European Union may determine, in the absence of proof to the contrary, that the resolutions were adopted jointly by the parent companies (see, to that effect, Avebe v Commission , cited in paragraph 44 above, paragraphs 137 to 139; Fuji Electric v Commission , cited in paragraph 44 above, paragraphs 186 to 193; and General Technic-Otis and Others v Commission , cited in paragraph 30 above, paragraphs 112 and 113). Similarly, when the provisions in question enable one parent company alone to determine the decisions of the bodies of the joint venture, the Commission and the Courts of the European Union may find, in the absence of proof to the contrary, that that parent company exercised decisive influence over those decisions.

50. However, given that the examination concerning the actual exercise of decisive influence is retrospective and may therefore be based on concrete evidence, both the Commission and the interested parties may adduce proof that the commercial decisions of the joint venture were taken by procedures other than those apparent from the mere abstract examination of the agreements regarding the operation of the joint venture (see, to that effect, Fuji Electric v Commission , cited in paragraph 44 above, paragraphs 194 and 195, and General Technic-Otis and Others v Commission , cited in paragraph 30 above, paragraphs 115 to 117). In particular, the Commission or the interested parties may adduce proof that, notwithstanding the power of a single parent company to adopt the decisions in question through its representatives occupying positions on the bodies of the joint venture, they were taken, in fact, by several or all of the parent companies unanimously.

The merits of the Commission’s finding that Sasol Holding in Germany and Sasol Ltd were liable for the infringement of Schümann Sasol International

51. The applicants dispute, in essence, on two grounds, the Commission’s analysis that Sasol Holding in Germany and Sasol Ltd were liable for Schümann Sasol International’s infringement. First, they submit that the Commission made an error of assessment in failing to acknowledge that Mr B. I., chairman of Schümann Sasol International’s management board, was Vara’s representative. In the applicants’ view, Vara was able, through its representative Mr B. I. to determine on its own the decisions of the management board during most of the joint venture period, since, under the by-laws of the management board, the chairman had a casting vote in the event of a tie. Secondly, the applicants submit that, in accordance with the articles of association of the joint venture and the shareholders’ agreement, Vara could block most of the decisions in the general meeting and the supervisory board of the joint venture, so that Sasol Holding in Germany could not adopt those decisions on its own through its representatives’ votes. On that basis, the applicants submit that Sasol Holding in Germany could not exercise decisive influence over the commercial conduct of Schümann Sasol International.

52. First of all, it should be borne in mind that, as regards the imputation of liability for a joint venture’s infringement to several parent companies, the Commission may demonstrate the actual exercise of decisive influence, by proving that the joint venture is jointly managed by its parent companies. As regards the nature of that joint management, in its judgment in Avebe v Commission , cited in paragraph 44 above (paragraphs 136 to 138), the Court considered relevant the evidence that the members of the bodies of the joint venture appointed by each of the parent companies, representing their commercial interests, had to work in close collaboration when defining and implementing the joint venture’s commercial policy and that the decisions adopted by them had necessarily to reflect a concurrence of wills of each of the parent companies which were found liable by the Commission. The Court examined not only the strategic decision-taking inside the joint venture, but also the day-to-day management, and stated that the two managers appointed by the two parent companies had to work in close collaboration in that regard also ( Avebe v Commission , cited in paragraph 44 above, paragraphs 136 to 138).

53. However, in the present case, the Commission did not find both parent companies liable for the infringement by Schümann Sasol International, but only Sasol Holding in Germany and its parent company Sasol Ltd.

54. Where the Commission finds only one of the parent companies solely liable for their joint venture’s infringement, it must show that the decisive influence on the joint venture’s commercial conduct was exercised unilaterally by that parent company.

55. It is apparent from the contested decision and its pleadings in the proceedings before the Court that the Commission takes the view that the condition set out in paragraph 54 above was met in the present case. It found in recital 471 of the contested decision that ‘Sasol [Ltd], via its 100%-subsidiary Sasol Holding in Germany GmbH, exercised decisive influence over Schümann Sasol International AG’. In addition, the Commission states, in paragraph 49 of the defence, that, ‘Sasol Ltd (via Sasol Holding) exercised sole control over [Schümann] Sasol International’ and, in paragraph 67 of that pleading, that ‘Vara was not to be held liable for the infringement because solely Sasol exercised decisive influence over the joint venture’.

56. Consequently, the Court must examine whether the Commission could properly conclude, on the basis of the facts set out in the contested decision and despite the applicants’ arguments during the administrative procedure concerning Vara’s importance in the joint venture’s management, that Sasol unilaterally exercised decisive influence over Schümann Sasol International.

The management board of Schümann Sasol International

57. The applicants state that resolutions of the management board of Schümann Sasol International were adopted by a simple majority and that, in the event of a tie, the chairman of the management board had a casting vote. However, the chairman of the management board, Mr B. I., represented Vara’s interests.

58. They submit, essentially, that the Commission incorrectly assessed the evidence available to it, when it came to the conclusion that Mr B. I. did not represent Vara, but was chairman of the joint venture according to Sasol’s wishes. The Commission based that finding on Vara’s submission of 11 October 2007, in which Mr B. I. responded to the Commission’s questions on behalf of Vara and paradoxically stated that — although he named himself as representing Vara for any further questions the Commission might have — he did not represent Vara in the joint venture period.

59. In addition, the applicants refer to their submission of 18 April 2008, according to which Mr B. I. in fact continuously acted as Mr Schümann’s right-hand man and represented Vara in the joint venture with Sasol. Before the joint venture period, Mr B. I. was the dominating individual of Vara-controlled HOS, where he was managing director from 1987 onwards and served as Mr Schümann’s confidant. In addition, Mr B. I. has also been active in leading positions in Vara and other companies owned by Mr Schümann during and after the joint venture period. That Mr B. I. has to be closely attributed to Vara and Mr Schümann is furthermore reflected in the announcement of the establishment of the joint venture dated 6 June 1995.

60. The applicants submit that the Commission was aware of those facts during the administrative procedure, but none the less ignored them and preferred without any further justification Vara’s submission, which came from Mr B. I. personally, that is a person who himself held part of Vara’s share capital as a limited partner.

61. The Commission observes, first of all, that the concept of decisive influence does not relate to the operational management of a joint venture but to the basic orientations concerning its commercial policy. As is clear from the articles of association of Schümann Sasol International, the management board acted under the auspices of the supervisory board and actions of the management board concerning important aspects of its commercial policy required the prior approval of the supervisory board.

62. Next, the Commission maintains that Mr B. I. did not represent Vara but owed his position to his knowledge of the field in which Schümann Sasol operated and that his appointment corresponded to Sasol’s wishes. Vara informed the Commission by its submission of 11 October 2007 that Mr B. I. had been appointed as a manager of Sasol International because Sasol wanted to tap his in-depth knowledge of the HOS business and thus to have him on the management board. According to the Commission, this is credible as Sasol had a particular interest in the successful management of the joint venture and wished to preserve continuity by running the day-to-day business with a person on the management board who was familiar with the paraffin wax business and in particular with the previous business of HOS. In any event, in paragraph 10 of the rejoinder, the Commission takes the view that its findings, as set out in recital 472 of the contested decision, imply that Mr B. I. represented Sasol, not Vara, on the management board of Schümann Sasol International.

63. The Court considers it appropriate to examine, first of all, Mr B. I.’s role in the management board of Schümann Sasol International and, then, the more general question as to whether Sasol could unilaterally determine the resolutions adopted within that management board.

Mr B. I.’s role

64. It must be borne in mind that during almost the entire joint venture period, Mr B. I. was the chairman of the management board of Schümann Sasol International.

65. During the administrative procedure, the applicants stated that Mr B. I. was Vara’s representative, whereas Vara stated that his appointment reflected Sasol’s wishes, so that he did not represent Vara.

66. First of all, it must be noted that the findings in recital 472 of the contested decision reflect precisely the content of a Vara submission of 11 October 2007. By contrast, the position expressed in Sasol’s submission of 18 April 2008 according to which Mr B. I. represented Vara, as well as the supporting documents, were rejected by the Commission.

67. As regards the wording of the Commission’s statements concerning Mr B. I.’s role, the applicants submit, in substance, that it made an error of assessment in failing to acknowledge that he represented Vara on the management board.

68. First, it must be noted that Mr B. I. held important positions in the companies owned by Mr Schümann and the Vara group before, during and after the joint venture period.

69. It must be borne in mind that on 29 November 1996 Mr B. I. became a limited partner of Vara, one of the direct parent companies of Schümann Sasol International. In that capacity he owned part of Vara’s authorised capital, Vara’s other owners being the members of the Schümann family. The Court considers in that regard that the ownership of part of the authorised capital is capable of demonstrating that Mr B. I. could identify himself with Vara’s specific commercial interests.

70. Similarly, during at least part of the joint venture period and in addition to performing his duties as chairman of the management board of Schümann Sasol International, Mr B. I. was managing director of Vara.

71. It is apparent from the case-law that the accumulation of managerial posts in one of the parent companies and their joint venture is a strong indication that the parent company in question exercises decisive influence over the commercial decisions of the joint venture, through the exercise of the decision-making power held by such a member of the joint venture’s management (see, to that effect, Fuji Electric v Commission , cited in paragraph 44 above, paragraph 199).

72. Next, Mr B. I. was, from 15 June 1995, a managing director of Vara Beteiligungsgesellschaft mbH. According to one of the pieces of evidence produced by the applicants, he still held that position in 2011 alongside Mr Schümann. In addition, he was managing director of Beteiligungsgesellschaft Hans-Otto Schümann mbH from 4 April 1989 until the date of its liquidation, on 13 September 1996. That company is also associated with Mr Schümann, Vara’s founder and main shareholder.

73. In addition, it must be pointed out that on 1 July 2001, when Mr D. S. R. replaced Mr B. I. as chairman of Schümann Sasol International’s management board, Mr B. I. became one of the six members of that company’s supervisory board. In so doing, Mr B. I. replaced Mr E. B. R who was also, in the Commission’s view, Vara’s representative, the composition of the supervisory board otherwise remaining unchanged. This indicates that Mr B. I. represented Vara on the supervisory board. That factor is moreover in itself sufficient to reject the Commission’s argument that Mr B. I. represented Sasol on the management board, since it is inconceivable that in such a case, immediately after the end of his term, he could have begun to represent Vara on the supervisory board.

74. Lastly, it must be noted that, in the letter of 2 February 1995 to all employees of HOS, Mr Schümann and Mr B. I. informed the employees of HOS about their ongoing negotiations with Sasol. In the letter, they state: ‘[W]e will still be able to influence the [new management of the joint venture] in the future as in the past.’

75. On that basis, the Court finds that the applicants adduced already at the stage of the administrative procedure evidence capable of proving that Mr B. I. had close links with the Vara group and Mr Schümann, that he could identify himself with Vara’s specific commercial interests, in particular because of his status as a limited partner, and that Vara could exercise a significant influence over the decisions of the management board of the joint venture because of the accumulation of posts held by Mr B. I., which could cause the commercial policy of Schümann Sasol International to be aligned with that of Vara’s.

76. Consequently, the Commission made an error of assessment when it dismissed that body of relevant evidence and only stated, in the contested decision, that the appointment of Mr B. I. reflected Sasol’s wishes. Such a description gives a distorted picture of the relevant circumstances of the case and does not fulfil the criterion that liability for an infringement of Article 81 EC must be established on the basis of precise and consistent evidence, and that the Commission must take into consideration, in an impartial manner, all the relevant matters of fact and of law submitted to it (see, to that effect, Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 59 to 63; see, by analogy, Case C‑450/98 P IECC v Commission [2001] ECR I‑3947, paragraph 57 and the case-law cited).

77. That conclusion is not undermined by any of the Commission’s arguments.

78. First, the Commission refers to the fact that Sasol agreed to the appointment of Mr B. I. as chairman of the management board.

79. It must be observed in that regard that, in accordance with the articles of association of Schümann Sasol International and the shareholders’ agreement, all the members of the management board and its chairman had to be appointed by the supervisory board, by a unanimous vote taken by the representatives of Vara and Sasol. Thus, first, the composition of the management board had to reflect an agreement between the two parent companies, that is to say, the will of both companies. Secondly, Vara had also to agree to the appointment of the members, designated by Sasol, which the Commission regarded as Sasol’s representatives.

80. Consequently, the fact that Sasol agreed to the appointment of Mr B. I. as chairman of the management board does not support the finding that he represented Sasol’s commercial interests, beyond what is necessary for the proper management of a joint venture owned by two parent companies, nor rebut the evidence adduced by the applicants to show that Vara exerted influence within the management board through Mr B. I.’s decision-making power.

81. Secondly, it must be observed that the only concrete piece of evidence on which the Commission based its conclusion that Mr B. I. did not represent Vara, but that his appointment reflected Sasol’s wishes, is Vara’s statement of 11 October 2007, referred to in paragraph 66 above.

82. In the Commission’s view, that statement is especially reliable, since it was sent in reply to a request for information from the Commission. Vara had a fundamental interest in presenting the situation correctly, given that a false statement could be punished by a fine under Article 23(1) of Regulation No 1/2003.

83. In that regard, it must be noted that the first page of the reply of 11 October 2007 to the request for information, containing the statement in question, indicates that the person responsible for the replies was in the first place Mr B. I. It is also established, as the applicants note, that at that time Mr B. I. was still a limited partner of Vara.

84. In addition, it must be found that the Commission did not define in its request for information to Vara, nor indeed in the contested decision, what it understood by the term ‘representation’. Consequently, since Mr B. I. had not been formally authorised to represent Vara on the joint venture’s management board, Vara could maintain, in its statement, that it was not represented, without the risk of incurring a fine.

85. In addition, it must be noted that an examination of the organisational links between the joint venture and the parent company does not necessarily relate to the representation of the parent company under a formal mandate from it to the director of the joint venture. It is more useful to take into consideration representation, in the broad sense, of the parent company’s commercial interests (see paragraph 35 above) and the influence on the bodies of the joint venture with a view to aligning its commercial policy with that of the parent company, as shown, in particular, by an accumulation of posts in the parent company’s management and the joint venture, and the ownership of part of the parent company’s authorised capital by a director of the joint venture (see paragraph 44 above).

86. From that point of view, it must be added that the question of the representation of a parent company’s commercial interests on a joint venture’s management board is not a simple fact, which if denied may reasonably lead to a fine if the facts have been distorted. On the contrary, that question comes within the assessment which the Commission must carry out by taking into consideration, in an impartial manner, all the relevant matters of law and of fact submitted to it by the parent companies, which often have conflicting interests leading them to emphasise one or other of the relevant matters. It must also be pointed out that, in the present case, the Commission did not impose a fine under Article 23(1) of Regulation No 1/2003 on either Sasol or Vara, even though they made diametrically opposed statements on the issue in question.

87. In the light of the foregoing, it is appropriate to consider whether the Commission’s error of assessment when examining Mr B. I.’s role (see paragraph 76 above) could affect the assessment of the influence exerted by Sasol on the management board of Schümann Sasol International.

The determination of the decisions of the management board of Schümann Sasol International

88. The applicants submit that, because of the dominant role of the members of the management board representing Vara, in particular that of Mr B. I., Sasol Ltd and Sasol Holding in Germany could not determine the decisions of that management board.

89. First, it should be noted that, in his notice of 6 June 1995 to the staff of Schümann Sasol AG (which became Schümann Sasol International), Mr B. I. described the roles of the management board of the joint venture. He stated that ‘in addition to coordinating the work of the management board, [he would] continue to be responsible for marketing, sales and procurement and supervision of the subsidiaries’, while Mr D. S. R. (of Sasol) would remain in his post in South Africa and be responsible for production and technical matters. Mr B. I. also stated that a third board member would be assigned to Hamburg (Germany).

90. It must be found that Mr B. I.’s decision-making powers are an indication of his central role on Schümann Sasol International’s management board.

91. Secondly, it must be noted that in the letter of 2 February 1995 which Mr B. I. and Mr Schümann sent to all the HOS employees, they indicated that they could still influence the new management of the joint venture as in the past, when Vara was HOS’s sole shareholder (see paragraph 74 above).

92. It is also apparent from that letter that it was the hope of Mr B. I. and Mr Schümann that the latter and Vara could, through Mr B. I., play a central role in Schümann Sasol International’s management.

93. Thirdly, should it become apparent that, in fact, Mr B. I. represented Vara and Mr Schümann on the management board of Schümann Sasol International, it must be noted that the Commission did not refer, in the contested decision, to any evidence to prove that, despite Mr B. I.’s decision-making powers and his casting vote as chairman in the event of a tie, Sasol could unilaterally determine the management board’s decisions.

94. Fourthly, such a capacity of Sasol to determine decisively the decisions of the management board is not apparent from the evidence concerning the various compositions of the management board submitted by the applicants during the administrative procedure.

95. Between 2 May and 31 October 1995, Schümann Sasol International’s management board comprised Mr B. I. and Sasol’s representative, Mr D. S. R. As the applicants correctly note, Mr B. I. could impose his own decisions in the management board on account of his casting vote.

96. During the period from 1 November 1995 to 30 June 2001, Schümann Sasol International’s management board comprised Mr B. I., its chairman, and Mr D. S. R. and Mr H. G. B. The applicants take the view that Mr H. G. B. was Vara’s representative, whereas the Commission contends that he was Sasol’s representative.

97. It must be found that, in the contested decision, the Commission did not examine whether Mr H. G. B. did in reality represent the commercial interests of either parent company. In addition, there is evidence that Mr H. G. B. represented Vara’s interests (see paragraph 99 below). Consequently, that composition of the management board also does not allow the conclusion that Sasol unilaterally determined that board’s decisions.

98. Between 1 July 2001 and 16 May 2002, Mr D. S. R. (Sasol) was chairman of the management board, the other member being Mr H. G. B.

99. First of all, it must be noted that that composition of the management board shows that Mr H. G. B. was Vara’s representative. It is not reasonable to suppose that Vara, owning one third of Schümann Sasol International’s share capital, agreed to a management board composed solely of Sasol representatives.

100. The applicants submit that during that period, all the resolutions of the management board were passed unanimously.

101. It must be noted that there is not the slightest analysis of that period in the contested decision. Given that Sasol alone was found entirely liable for the infringement committed by the joint venture, the Commission should have shown that Sasol had unilaterally exercised decisive influence over Schümann Sasol International’s commercial policy (see paragraph 54 above).

102. However, it must be borne in mind (see paragraph 52 above) that the passing of unanimous resolutions in the management board shows close collaboration between the parent companies and, therefore, joint management of the joint venture, which constitutes evidence that a decisive influence has been exercised jointly and not by one of the parent companies alone (see, to that effect, Avebe v Commission , cited in paragraph 44 above, paragraphs 137 and 138, and Fuji Electric v Commission , cited in paragraph 44 above, paragraph 194).

103. Consequently, that composition of the management board cannot support the conclusion that Sasol unilaterally determined Schümann Sasol International’s decisions.

104. Lastly, between 17 May and 24 September 2002, Schümann Sasol International’s management board comprised Mr D. S. R., Mr H. G. B. and Mr C. D. I.

105. The applicants submit that Mr H. G. B. and Mr C. D. I. were Vara representatives, so that even as chairman Mr D. S. R. could be outvoted by them.

106. It must be noted that, in the contested decision, the exercise of decisive influence by either parent company through Mr H. G. B. and Mr C. D. I. is not examined, nor is the composition of the management board set out generally. In addition, there is evidence to show that Mr H. G. B. represented Vara’s interests (see paragraph 99 above). Consequently, it is not apparent from the contested decision that, during the period in question, Sasol could, through its representatives on the management board, unilaterally determine that board’s decisions.

107. In the light of the foregoing, it must be found that the Commission has not proved in the contested decision that, in the light of Mr B. I.’s decision-making powers and those of the other members of the management board who could be associated with Vara, Sasol did in fact unilaterally determine the content of the decisions of Schümann Sasol International’s management board through members who represented Sasol’s commercial interests and sought to align Schümann Sasol International’s conduct with its own. Nor is there any direct evidence in the contested decision (see paragraph 44 above) which could demonstrate such a decisive influence by Sasol.

Relevance of operational management

108. The Commission raises the issue of the fact that the management board of Schümann Sasol International was responsible for the day-to-day management of that company. It argues that, according to paragraphs 63 to 65, 82 and 83 of Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, the operational management of a subsidiary is irrelevant in determining whether there is an economic unit between a subsidiary and its parent company, since control over the commercial policy in the strict sense is not a condition for considering that a parent company forms one undertaking with a subsidiary. Rather, it is sufficient if a parent plays a significant role with regard to the matters that define the subsidiary’s commercial policy.

109. It must be noted that the judgment referred to by the Commission relates to a factual situation in which the parent company held 100% of the subsidiary’s share capital.

110. It is true that the question of operational management may be irrelevant in so far as a wholly-owned subsidiary with a single parent company is concerned, given that the demonstration that the subsidiary is operationally independent is not in itself capable of rebutting the presumption that decisive influence is exercised (see the case-law cited in paragraph 153 below).

111. However, where there is a sole shareholder, all the decisions — including those concerning the operational management of the subsidiary — are taken by managers who are designated and appointed either directly or indirectly (by the bodies whose members have been designated by the parent company) by the single parent company. Similarly, where there is no other shareholder, the only commercial interests that are evident within the subsidiary are as a rule those of the sole shareholder. Consequently, the Commission may presume that decisive influence has been exercised even where the operational management is conducted by the managers of the subsidiary autonomously.

112. By contrast, in the case of joint ventures, there are several shareholders and the decisions of the joint venture’s bodies are taken by members representing the commercial interests of the various parent companies, which may coincide, but which may also diverge. Consequently, the question whether a parent company has exercised actual influence over the operational management of the joint venture, in particular through the managers appointed by it or who at the same time occupy positions in the parent company’s management, continues to be relevant.

113. Lastly, it must be borne in mind that the Court examined in detail decision-making procedures within operational management in the judgments in Fuji Electric v Commission , cited in paragraph 44 above (paragraph 195), and General Technic-Otis and Others v Commission , cited in paragraph 30 above (paragraphs 112 to 117), in order to assess whether the applicants in those cases exercised decisive influence as regards their joint ventures’ conduct on the market.

114. Consequently, the Court must reject the Commission’s argument that determination of the joint venture’s commercial policy in the strict sense by its parent company is irrelevant when examining whether there is an economic unit between them.

Conclusion on the management board of Schümann Sasol International

115. First, the Commission made an error of assessment in the contested decision when it examined Mr B. I.’s role (see paragraph 76 above). It cannot be ruled out that, in the absence of that error, the Commission would have concluded that Vara exercised decisive influence over the decisions of the management board of Schümann Sasol International during a considerable part of the joint venture period. Secondly, in any event, the Commission has failed to show that Sasol had in fact unilaterally determined the content of the decisions of the management board of Schümann Sasol International (see paragraph 107 above). Thirdly, it must be noted that the influence exercised over the decisions of the joint venture’s management board is entirely relevant from the perspective of whether the parent companies may be found liable for a joint venture’s infringement (see paragraph 114 above).

The supervisory board and the shareholders’ meeting of Schümann Sasol International

116. The applicants submit that, because of the decision-taking powers held by Vara, the Commission could not properly find that Sasol had decisively influenced the decisions taken in the supervisory board and general meeting of Schümann Sasol International.

117. It must be borne in mind that the evidence set out by the Commission in recitals 473 and 474 of the contested decision indicates that both Sasol and Vara could block all the decisions within the general meeting and supervisory board of Schümann Sasol International, except those falling within section 1.5 of the shareholders’ agreement.

118. Of the decisions referred to in section 1.5 of the shareholders’ agreement, only the approval of investments falls with the category of strategic commercial decisions affecting the joint venture according to the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 (OJ 2008 C 95, p. 1).

119. In addition, in accordance with point 69 of the Commission Consolidated Jurisdictional Notice under Regulation No 139/2004, the most important veto rights concern decisions on the appointment and dismissal of the senior management and the approval of the budget of the joint venture. Point 69 also states that the power to co-determine the structure of the senior management, such as the members of the board, usually confers upon the holder the power to exercise decisive influence on the commercial policy of an undertaking. The same is true with respect to decisions on the budget since the budget determines the precise framework of the activities of the joint venture and, in particular, the investments it may make.

120. In accordance with the legislation and the provisions of the agreements governing the operation of the joint venture (Schümann Sasol International), Sasol Holding in Germany had the power to determine unilaterally only the decisions as to the approval of investments, not the most important strategic commercial decisions, namely those relating to the budget, the appointment and dismissals of the management or those relating to the business plan.

121. Consequently, the Commission has failed to show, by an abstract analysis based on the legislation and the provisions of the agreements governing the operation of the joint venture (see paragraph 49 above), that Sasol alone could determine, on the supervisory board and at the general meeting of Schümann Sasol International, all the strategic commercial decisions affecting the latter. On the contrary, it is apparent from the abstract analysis that the most important of those decisions had to be adopted jointly by Sasol Holding in Germany and Vara.

122. In addition, the contested decision does not show on the basis of concrete evidence (see paragraph 50 above) that, actually, Sasol Ltd and Sasol Holding in Germany determined alone, notwithstanding Vara’s blocking power, the strategic commercial decisions of the joint venture Schümann Sasol International.

123. In the light of the foregoing, the Court concludes that the Commission has failed to show that Sasol had unilaterally determined the most important decisions of the supervisory board and general meeting of Schümann Sasol International and, in particular, the strategic commercial decisions relating to the budget, business plan and the appointment of the latter’s senior management.

The actual exercise by Sasol Holding in Germany of decisive influence over the market conduct of S chümann Sasol International

124. Recital 475 of the contested decision states, ‘[w]ith regard to the situation described in recitals (472)-(474), and in particular Sasol’s ability to enforce its wish on important strategic decisions, if no consensus could be reached, such as those listed in section 1.5 of the shareholder and voting rights agreement (e.g. approval of capital investments), Sasol must be considered to have been in control of the joint venture’. In recital 481 of the contested decision, the Commission found that ‘it ha[d] been established that Sasol was in control of the joint venture’ and that ‘factual evidence demonstrat[ed] decisive influence’ by Sasol Holding in Germany over Schümann Sasol International.

125. It follows from the foregoing analysis that the Commission failed to show, in the contested decision, that Sasol had determined unilaterally the resolutions of Schümann Sasol International’s management board and the most important strategic decisions taken by the general meeting and its supervisory board (see paragraphs 115 and 123 above).

126. Similarly, the Commission has failed to demonstrate, by direct evidence, that Sasol Holding in Germany and Sasol Ltd exercised decisive influence over the commercial conduct of Schümann Sasol International.

127. Consequently, the Commission’s analysis which led to Sasol Holding in Germany and Sasol Ltd being found liable for the infringement by Schümann Sasol, the subsidiary of Schümann Sasol International, is vitiated by errors of assessment. Accordingly, the first plea in law must be upheld and the contested decision annulled in so far as it makes Sasol Holding in Germany and Sasol Ltd liable for the infringement by Schümann Sasol.

128. The contested decision must therefore be annulled inasmuch as the Commission found that Sasol Holding in Germany and Sasol Ltd had taken part in the infringement before 1 July 2002.

The applicants’ offer to adduce evidence

129. The applicants propose that the oral testimony of Mr C. D. I. (current board member of Sasol Wax International) be heard concerning the fact that, during the joint venture period, the basic orientation of the joint venture’s commercial strategy and operations was determined by Vara, through Mr Schümann and Mr B. I.

130. In the light of the foregoing analysis, the Court considers that that testimony is not required, so that the offer to provide evidence is rejected.

2. The second plea, alleging that Sasol Ltd, Sasol Holding in Germany and Sasol Wax International were wrongly found liable for the infringement during the Sasol period

131. The applicants argue that the Commission unlawfully imputed liability for the actions of Sasol Wax to (i) its parent company Sasol Wax International, (ii) that company’s parent company, Sasol Holding in Germany, and (iii) the company heading the group, Sasol Ltd, during the Sasol period, from 1 July 2002 to 28 April 2005.

The first part of the plea, alleging an error in law regarding the possibility of finding a parent company liable for an infringement committed by a subsidiary on the sole basis of a presumption founded on 100% ownership

132. In recital 494 of the contested decision, the Commission found as follows:

‘[I]t is established case-law that the Commission can presume that parent companies exercise decisive influence on their wholly-owned subsidiary. Where such a presumption applies, as in this case for Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol Ltd, it is for the parent companies to rebut the presumption by adducing evidence demonstrating that [their] subsidiary decided independently on its conduct on the market.’

133. The applicants state that the Commission erred in law by applying the wrong legal standard. There is no valid legal basis justifying the presumption that a 100% shareholding as such is sufficient to establish a parent company’s liability for the cartel behaviour of its subsidiary. Such a presumption is inconsistent with the principle of individual legal responsibility and the presumption of innocence.

134. The Court points out that in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, secondly, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Case C‑97/08 P Akzo Nobel and Others v Commission , cited in paragraph 30 above, paragraphs 60 and 61 and the case-law cited).

135. In addition, according to the case-law, the presumption of liability based on the holding, by a company, of the entire share capital of another company, applies not only in cases where there is a direct relationship between the parent company and its subsidiary, but also where, as in the present case, that relationship is indirect due to the interposition of another company (Case C‑90/09 P General Química and Others v Commission [2011] ECR I‑1, paragraph 90).

136. Consequently, the Commission has not erred in law by finding that where a parent company has a 100% shareholding in a subsidiary, it can presume that that parent company, as well as the indirect parent companies, have in fact exercised decisive influence over the subsidiary’s commercial policy.

137. When the presumption that a parent company has exercised decisive influence over a subsidiary is not rebutted, the Commission can show that the direct and indirect parent companies and their subsidiary form a single economic unit and therefore form a single undertaking for the purpose of the case-law referred to in paragraph 31 above. The fact that parent companies and their subsidiary constitute a single undertaking for the purpose of Article 81 EC enables the Commission to address a decision imposing fines to the parent companies, without having to establish their personal involvement in the infringement (see the case-law cited in paragraph 36 above).

138. Such a step does not infringe the principle of personal responsibility. Sasol Wax International, Sasol Holding in Germany and Sasol Ltd were found individually liable for an infringement which they are deemed to have committed themselves on account of their close legal and economic links with Sasol Wax, as a consequence of holding all the shares in the latter (see, to that effect, Metsä-Serla and Others v Commission , cited in paragraph 34 above, paragraph 34).

139. As regards the alleged failure to observe the principle of the presumption of innocence, it should be borne in mind that, according to that principle, every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (Case T‑474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II‑4225, paragraph 76).

140. The application of the principle of the presumption of innocence in the field of competition law must be adapted to the fact that, unlike criminal proceedings which are necessarily directed at a person (natural or legal), competition law applies to an undertaking, namely an economic unit comprising, as the case may be, several legal persons. In addition, companies at the head of a group are free to reorganise their internal structures, in particular by setting up companies having separate legal personality for certain activities.

141. In such circumstances, in order to safeguard the effectiveness of European Union competition law, the mere fact that a parent company owns 100%, or almost 100%, of a subsidiary which has participated directly in an infringement may be sufficient for the Commission to establish that the parent company is liable. Once that objection has been communicated by the Commission, it is for the parent company to adduce evidence to the contrary in order to prove the absence of an economic unit between itself and its subsidiary. In the present case, the Commission followed that approach, carefully examining the evidence put forward by the applicants, and thus respected the principle of the presumption of innocence.

142. The first part of the second plea in law must therefore be rejected.

The second part of the plea, based on the allegedly erroneous finding that the presumption of control had not been rebutted

143. The applicants submit that, by the evidence appearing in their replies to the statement of objections, they showed that, in fact, Sasol Wax International had not exercised a decisive influence over Sasol Wax, since it did not involve itself in Sasol Wax’s strategic commercial decisions or operational management.

The contested decision

144. As regards the evidence produced by the applicants in the context of their replies to the statement of objections, the Commission stated, in the contested decision, as follows:

‘…

(498) Concerning the managing directors and the composition and role of the supervisory board of Sasol Wax GmbH, Sasol acknowledges that Sasol Wax International AG had the authority to appoint the managing directors and the members of the supervisory board of Sasol Wax GmbH. It is also confirmed that several members of Sasol Wax GmbH’s supervisory board over the years were also members of Sasol Wax International AG’s management board. However, Sasol claims that this is not relevant as the supervisory board did not have a significant role (no effective control on the management and/or strategy of Sasol Wax GmbH), that it was in the hands of former Vara employees and did not influence the business conduct of Sasol Wax GmbH. Firstly, it is sufficient that Sasol International AG had the authority to appoint the managing directors and members of the supervisory board and it is therefore irrelevant whether it continued to be occupied by so-called former Vara employees. Secondly, concerning the role of the supervisory board, the articles of association list certain matters for which the supervisory board shall be competent, e.g. appointment, dismissal and supervision of the management, approval of annual accounts and budgets, approval of investments over EUR 0.5 million and changes in the business organisation. Although Sasol claims that none of these powers played a significant role in the business conduct of Sasol Wax GmbH, that there had been no cases in which the supervisory board had exerted any influence of the management of Sasol Wax GmbH and that the directors of Sasol Wax GmbH routinely took actions that were essential for the strategic commercial behaviour of Sasol Wax GmbH without asking for the supervisory board’s approval, the powers which were conferred to the supervisory board show that it was foreseen that the supervisory board would actually have a strategic and financial role and responsibility which is separated from the day-to-day management of the company as normally carried out by the management board and directors of the company.

(499) Sasol also argues that Sasol Wax International AG’s lack of influence is confirmed by the fact that representatives of Sasol at the technical meetings continued to be the former Vara employees and that the business unit managers whose activities were affected by the technical meetings had no relation with Sasol Ltd. With regard to the conduct of the so-called former Vara employees, these persons were, at the time when they committed the illegal activities, employees of the Sasol group, and it is irrelevant whether they had formerly been employed by Vara or that their direct employer was a subsidiary of Sasol Wax International AG, Sasol Holding in Germany GmbH or Sasol Ltd as long as it can be shown that the parent companies exercised decisive influence over that affiliate.’

General observations

145. According to the case-law, in order to rebut the presumption that a parent company has exercised decisive influence over its subsidiary’s conduct as described in paragraph 134 above, it was for the applicants to put forward any evidence relating to the economic and legal organisational links between Sasol Wax and Sasol Wax International which in their view were apt to demonstrate that they did not constitute a single economic entity. When making its assessment, the Court must take into account all the evidence adduced, the nature and importance of which may vary according to the specific features of each case (Case T‑112/05 Akzo Nobel and Others v Commission , cited in paragraph 108 above, paragraph 65, upheld on appeal in Case C‑97/08 P Akzo Nobel and Others v Commission , cited in paragraph 30 above, and Case T‑39/07 Eni v Commission [2011] ECR II‑4457, paragraph 95).

146. The presumption in question is based on the fact that, first, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, by dint of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and, secondly, that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found (Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 60).

147. In addition, the application of such a presumption is justified by the fact that, where the parent company is the subsidiary’s sole shareholder, it has at its disposal all the possible means of ensuring that the subsidiary’s commercial conduct is aligned with its own. In particular, it is the sole shareholder that defines, in principle, the extent of the subsidiary’s autonomy by establishing the latter’s statutes, chooses its management and takes or approves the subsidiary’s strategic commercial decisions, if necessary by having representatives on the subsidiary’s bodies. Likewise, the economic unity between the parent company and its subsidiary is normally further protected by obligations arising under the company law of the Member States, such as the obligation to keep consolidated accounts, the obligation for the subsidiary to account periodically for its activities to the parent company and also by the approval of the subsidiary’s accounts in a general meeting consisting solely of the parent company, which necessarily means that the parent company follows, at least in broad terms, the commercial activities of the subsidiary.

148. Moreover, it should be emphasised that in the case of a subsidiary which is wholly, or almost wholly, owned by just one parent company, there is in principle just one commercial interest and the members of the subsidiary’s bodies are designated and appointed by the sole shareholder, which may give them at least informal instructions and impose performance criteria on them. In such a case, therefore, there is necessarily a relationship of confidence between the management of the subsidiary and the management of the parent company, and the management of the subsidiary necessarily acts by representing and promoting the only commercial interest that exists, namely the interest of the parent company (see, also, paragraph 35 above). Thus, the unity of the market conduct of the parent company and of its subsidiary is ensured in spite of any autonomy conferred on the management of the subsidiary as regards its operational management, which comes within the definition of its commercial policy in the strict sense. As a general rule, moreover, it is the sole shareholder that defines, alone and according to its own interests, the procedure whereby the subsidiary takes decisions and that determines the subsidiary’s operational autonomy, which it may change on its own initiative by amending the rules governing the functioning of the subsidiary or in the context of a restructuring, or indeed by setting up informal decision-taking structures.

149. Thus, the presumption that the parent company does in fact exercise decisive influence over the commercial conduct of its subsidiary is justified in so far as it covers typical situations as regards the relationship between a subsidiary and its single parent company, by providing that the ownership of all or virtually all the share capital of the subsidiary by a single parent company means in principle that they pursue the same conduct on the market.

150. The fact none the less remains that, following the statement of objections, the companies concerned have every opportunity to show that the mechanisms described at paragraphs 147 and 148 above, normally leading to the alignment of the commercial conduct of the subsidiary with that of its parent company, did not operate in the ordinary manner, so that the economic unity of the group was severed.

The operational management of Sasol Wax

151. The applicants claim to have shown that it was the Sasol group’s policy not to interfere with the autonomous conduct of its subsidiary Sasol Wax. In that regard, they rely on a communication signed by the managers of Sasol Wax International on 9 April 2001.

152. Accordingly, the applicants state that ‘all day-to-day operational matters were to be handled by Sasol Wax … as an autonomous entity’, whereas ‘[v]isions, missions and strategy’ were to be developed by Sasol Wax International. In addition, there was not a single case in which the directors of Sasol Wax were confronted with a direction of a veto of Sasol Wax International, and the managers of Sasol Wax International during the Sasol period could not recall a single instruction being given to the directors of Sasol Wax.

153. In that regard, the Court has held that the fact that a subsidiary has its own local management and its own resources does not prove, in itself, that that company decides upon its conduct on the market independently of its parent company. The division of tasks between subsidiaries and their parent companies and, in particular, the fact that the local management of a wholly-owned subsidiary is entrusted with the management of day-to-day activities is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company. Consequently, in the case of a wholly-owned or virtually wholly-owned subsidiary directly involved in the infringement, the evidence adduced in that regard is not capable of rebutting the presumption that decisive influence over the subsidiary’s conduct was actually exercised by the parent company and by the ultimate holding company (see, to that effect, Alliance One International v Commission , cited in paragraph 35 above, paragraphs 130 and 131).

154. Such an approach is moreover justified by the considerations in paragraphs 35, 1 47 and 148 above, from which it is apparent that the managers of a subsidiary 100%- or almost 100%-owned by a single parent company normally act by representing and promoting the only commercial interests that exist, namely those of the single parent company. They therefore ensure that the subsidiary’s commercial conduct is consistent with that of the rest of the group in exercising their autonomous powers.

155. It follows that the applicants’ arguments based on the operational autonomy of Sasol Wax, which are not capable of showing that the economic unit between the latter and Sasol Wax International has been severed, must be rejected.

Strategic commercial decisions

156. First, the applicants note that Sasol Wax International did not exercise its power to appoint the managing directors of Sasol Wax and did not replace the old HOS management. Sasol Wax was managed as an independent economic unit in the tradition of the Schümann family by three managing directors inherited from HOS. The Commission erred in law in dismissing that factor as irrelevant in the contested decision and in finding that it was sufficient that Sasol Wax International had the authority to appoint the managing directors.

157. It must be noted that such an argument has already been rejected by the Court in its judgment in Alliance One v Commission , cited in paragraph 35 above (paragraph 137). In the light of the power of the sole shareholder, in this case Sasol Wax International, to choose the managers of Sasol Wax after the acquisition of its entire share capital, the fact that those managers remained in office can be attributed only to a decision by the single parent company and indicates their affiliation to it. Consequently, that factor cannot rebut the presumption that the parent company exercises decisive influence over its subsidiary’s conduct.

158. Secondly, the applicants state that they submitted complete sets of minutes of all supervisory board meetings of Sasol Wax and of Sasol Wax International. None of those documents included any indication of any significant influence being exercised on Sasol Wax by its direct or indirect parent companies. In addition, the managers of Sasol Wax routinely took initiatives concerning the strategic commercial behaviour of Sasol Wax without asking for the supervisory board’s or the shareholders’ approval. Examples included the long-term supply contracts with ExxonMobil and Shell that were negotiated and entered into by the directors of Sasol Wax only, the staffing of the business units of Sasol Wax, as well as a cost-cutting programme and the outsourcing of Sasol Wax’s logistics services to third parties.

159. It must be stated that the initiatives of the managers of Sasol Wax do not relate to the most important strategic commercial decisions from the point of view of assessing the unity of the market conduct of the subsidiary and its parent company, such as those relating to the budget, the business plan, major investments or the appointment of senior management. Similarly, the applicants do not deny that the supervisory board was responsible for approving Sasol Wax’s annual accounts.

160. Consequently, in the light of the foregoing considerations, it must be concluded that the applicants’ arguments do not prove that the usual mechanisms ensuring the unity of the market conduct of the parent company and its wholly-owned subsidiary, providing the basis for the presumption that decisive influence is actually exercised, were disrupted (see paragraphs 147 and 148 above), so that the Commission could properly determine that there was an economic entity corresponding to the concept of an undertaking, as provided for in Article 81 EC.

The irrebuttable nature of the presumption

161. The applicants submit that if it were considered that, despite all the evidence put forward by them, that evidence was insufficient to rebut the presumption of actual control by the parent company of decisive influence over its subsidiary’s conduct, this presumption would in fact be irrebuttable, in breach of Article 2 of Regulation No 1/2003, the obligation to state reasons, the principle of individual legal responsibility and the presumption of innocence.

162. In that regard, it must be noted that the applicants’ arguments adduced to rebut the presumption in question describe the ordinary operations of a large international undertaking the local unit of which, Sasol Wax, is run by the managers kept in post by decision of Sasol Wax International, its 100% parent company, which also decided to delegate the powers to define the commercial policy in the strict sense to those managers while retaining the power to adopt the strategic commercial decisions in Sasol Wax’s supervisory board and the general meeting.

163. Rebutting the presumption of the actual exercise of decisive influence by a parent company over its subsidiary’s conduct is not, however, a question of the quantity and detail of the evidence when that evidence describes the usual form of organisation in a large multinational undertaking, where the powers of operational management are delegated to the managers of its local units. In order to rebut that presumption, it is necessary to set out unusual circumstances which show that, notwithstanding the fact that the subsidiaries of the group are wholly owned by their parent companies, the economic unity of the group has been severed, as the mechanisms ensuring the alignment of the subsidiaries’ commercial conduct with that of their parent companies did not operate in the usual way.

164. However, the applicants have not adduced such evidence in this case.

165. It must also be borne in mind that the Court of Justice and the General Court have already held that the presumption of the exercise of decisive influence by a parent company over its subsidiary is not irrebuttable. According to the case-law, a presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded ( Elf Aquitaine v Commission , cited in paragraph 146 above, paragraph 62, and judgment of 27 September 2012 in Case T‑343/06 Shell Petroleum and Others v Commission , ECR, paragraph 54). That is true of the presumption of the existence of an economic unit between a subsidiary and its single parent company, in the light also of the considerations in paragraphs 147 to 150 above.

166. Consequently, the applicants’ complaint alleging that the presumption at issue is irrebuttable must be rejected.

Conclusion

167. In the light of all the foregoing considerations, it must be concluded that the Commission correctly found that Sasol Wax and Sasol Wax International formed an economic unit within the meaning of the case-law cited in paragraph 36 above, and the companies comprising that unit may be found joint and severally liable for the infringement in question.

168. Moreover, it must be pointed out that the applicants do not put forward any specific argument as regards rebutting the presumption of the actual exercise of decisive influence by Sasol Holding in Germany over the commercial conduct of Sasol Wax International or by Sasol Ltd over Sasol Holding in Germany.

169. The second plea in law must therefore be rejected in its entirety.

The applicants’ offer to adduce evidence

170. The applicants propose that the oral testimony of Mr C. D. I. and Mr R. G. S., who managed Sasol Wax during the Sasol period, be heard concerning the fact that neither Sasol Wax International nor Sasol Ltd gave instructions to their subsidiary and that Sasol Wax independently determined its commercial conduct.

171. In the light of the foregoing analysis, the Court considers that that testimony cannot affect the question of the imputation of liability to Sasol Wax International, Sasol Holding in Germany and Sasol Ltd for the infringement by Sasol Wax. Consequently, there is no need to accept the applicants’ offer to adduce evidence.

3. The third plea, concerning the fact that Vara was not found jointly and severally liable for the Schümann period and the joint venture period

172. The applicants point out that, during the Schümann period, the company directly involved in the infringement, HOS, was controlled by Vara and ultimately by Mr Schümann personally. Similarly, during the joint venture period, Vara also had at least joint control over the operating entity, Schümann Sasol. By failing to hold Vara liable for the actions of HOS and Schümann Sasol, and attributing joint and several liability exclusively to Sasol for the joint venture period, the Commission treated Sasol differently from Vara.

173. The Commission does not offer any explanation for the different treatment of Sasol on the one hand and Vara/Mr Schümann on the other. In addition, the applicants refer to the principles established in HFB and Others v Commission , cited in paragraph 33 above (paragraph 105).

174. That approach by the Commission severely compromises possible means of recourse for Sasol Ltd, Sasol Holding in Germany and Sasol Wax International for the purpose of bringing an action for recovery against Mr Schümann and/or Vara, since Sasol would have to prove that the latter were involved in the infringement. This would be particularly difficult since the applicants would have to explain why neither Vara or Mr Schümann were found liable by the Commission. In addition, a finding that they were jointly and severally liable was all the more important to Sasol since the cartel was founded, inter alia, by HOS and Mr Schümann, at a time when Sasol was not engaged in the European paraffin wax business.

175. Lastly, as a result of the failure to find Vara jointly and severally liable, the Commission did not apply the 10% ceiling of Article 23(2) of Regulation No 1/2003 with regard to Vara’s turnover.

176. The Commission argues that it enjoys a discretion in deciding which entities of an undertaking it finds liable for an infringement, its assessment being done on a case-by-case basis, and it is not under an obligation to state reasons why other measures of a similar kind to those addressed to the entities found liable were not adopted vis-à-vis third parties.

177. In any event, the Commission states that, according to the case-law, when an undertaking’s conduct has infringed Article 81(1) EC, it cannot escape penalty on the ground that another undertaking has not been fined. Even if the Commission erred in not finding Vara liable for the infringement, respect for the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party.

178. First of all, the Court notes that as the first plea in law has been upheld there is no need to examine a failure to have regard to the principle of equal treatment regarding the joint venture period, since the contested decision is annulled in that respect.

179. In the following paragraphs, the Court will examine only the applicants’ complaint of discrimination in comparison with Vara and Mr Schümann as regards the Schümann period.

180. First of all, the Commission expressly acknowledged, in recital 457 of the contested decision, that ‘HOS, the company directly involved in the infringement, was ultimately controlled by Mr … Schümann personally and