Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Heijmans v Commission

(Case T-360/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct’

1. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Analogous requirements with regard to grounds in support of a plea — Grounds not set out in the application — General reference to documents annexed to the application — Inadmissibility — Reference to the application of another applicant — Inadmissible (Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see paras 21-26)

2. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 38-42, 73)

3. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Subsidiary held by an intermediate company within a group carrying on very diverse activities — Fact not sufficient to rebut the presumption (Arts 81 EC and 82 EC) (see para. 45)

4. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — No infringement of principle that penalties should be individual to the offender (Arts 81 EC and 82 EC) (see para. 46)

5. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — No infringement of the presumption of innocence — Infringement of the principles of proportionality and equality — Assessment (Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 48; Council Regulation No 1/2003, Art. 2) (see paras 47-49, 51-53)

6. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Personal responsibility of the economic entity having committed the infringement — Joint and several liability of the companies forming part of that same economic entity — Lawfulness (Arts 81 EC and 82 EC) (see para. 50)

7. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Control exercised by the parent company over its subsidiary — No need for a link with the infringing conduct of the subsidiary (Arts 81 EC and 82 EC) (see para. 67)

8. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Additional elements referred to by the Commission — Elements required by national law — No effect (Arts 81 EC and 82 EC) (see para. 70)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders Heijmans NV to pay the costs.

Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Heijmans v Commission

(Case T-360/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct’

1. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Analogous requirements with regard to grounds in support of a plea — Grounds not set out in the application — General reference to documents annexed to the application — Inadmissibility — Reference to the application of another applicant — Inadmissible (Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see paras 21-26)

2. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 38-42, 73)

3. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Subsidiary held by an intermediate company within a group carrying on very diverse activities — Fact not sufficient to rebut the presumption (Arts 81 EC and 82 EC) (see para. 45)

4. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — No infringement of principle that penalties should be individual to the offender (Arts 81 EC and 82 EC) (see para. 46)

5. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — No infringement of the presumption of innocence — Infringement of the principles of proportionality and equality — Assessment (Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 48; Council Regulation No 1/2003, Art. 2) (see paras 47-49, 51-53)

6. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Personal responsibility of the economic entity having committed the infringement — Joint and several liability of the companies forming part of that same economic entity — Lawfulness (Arts 81 EC and 82 EC) (see para. 50)

7. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Control exercised by the parent company over its subsidiary — No need for a link with the infringing conduct of the subsidiary (Arts 81 EC and 82 EC) (see para. 67)

8. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Additional elements referred to by the Commission — Elements required by national law — No effect (Arts 81 EC and 82 EC) (see para. 70)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;