Joined Cases C‑93/13 P and C‑123/13 P

European Commission

v

Versalis SpA

and

Eni SpA

and

Versalis SpA

and

Eni SpA

v

European Commission

‛Appeal — Competition — Agreements, decisions and concerted practices — Chloroprene rubber market — Succession of production entities — Imputability of the unlawful conduct — Fines — Repeated infringement — Unlimited jurisdiction)’

Summary — Judgment of the Court (Fifth Chamber), 5 March 2015

Appeals — Jurisdiction of the Court — Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty — Not included

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Similar infringements successively committed and resulting from the conduct of two subsidiaries of the same parent company — No imputation of the infringement to the parent company in the earlier decision — Facts of the participation of the parent company in the earlier infringement — Burden of proof — Taking into account of the time which has elapsed between the infringements

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Similar infringements successively committed and resulting from the conduct of two subsidiaries of the same parent company — No imputation of the infringement to the parent company in the earlier decision — No effect

Competition — EU rules — Infringements — Attribution — Infringement by an entity which did not cease to exist and continued by another entity which succeeded it in the economic activity of the market concerned — Imputation of the entire infringement to that other entity — Admissibility in the light of the fact that the two entities are subject to the control of the same public authority or of a private company

See the text of the decision. (see paras 40-43, 90)

See the text of the decision. (see paras 52, 53, 57-59)

As follows from point 28 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the aggravating circumstance of repeated infringement is characterised by the continuation or repetition by an undertaking of the same or a similar infringement after the Commission or a national competition authority has made a finding that the undertaking has infringed Article 81 EC or 82 EC. It is for the Commission to prove that the conditions for a finding of repeated infringement are satisfied, both in the statement of objections and in the decision. Thus, when imposing a fine on a company for an infringement of the EU competition rules and when applying, in calculating the fine, a multiplier to take account of the fact that that company had already been involved in an infringement of the competition rules, the Commission is required to provide, with the decision imposing the fine, a statement of reasons enabling the Courts of the European Union and that company to understand in what capacity and to what extent it is alleged to have been involved in the earlier infringement. In particular, if the Commission considers that that company was part of the undertaking to which the decision relating to the earlier infringement was addressed, the Commission must give sufficient reasons for that assertion. (see paras 87, 98)

In order to establish the aggravating circumstance of repeated infringement on the part of the parent company, it is not necessary for that company to have been the subject of previous legal proceedings giving rise to a statement of objections and a decision. For that purpose, what matters is an earlier finding of a first infringement resulting from the conduct of a subsidiary with which the parent company involved in the second infringement formed, already at the time of the first infringement, a single undertaking for the purpose of Article 81 EC. The objective of suppressing conduct that infringes the competition rules and preventing its reoccurrence by means of deterrent penalties would be jeopardised if an undertaking encompassing a subsidiary concerned by a first infringement were able, by altering its legal structure through the creation of new subsidiaries against which proceedings could not be brought on the basis of the first infringement, but which are involved in the commission of the new infringement, to make impossible or particularly difficult, and therefore avoid, a penalty for repeated infringement. (see paras 91, 92)

Where the Commission intends to impute an infringement of competition law to a legal person and invoke repeated infringement against it, the statement of objections must contain all the information necessary for that person to defend itself. In particular, if the legal person is a parent company against which the aggravating circumstance of repeated infringement is alleged on account of the anticompetitive conduct established by the Commission on the part of one of its subsidiaries, but for which that parent company was not, prior to that statement, an addressee of a decision finding a first infringement, the statement of objections addressed to that parent company must contain the information demonstrating that the conditions for a finding of repeated infringement are satisfied and, in particular, proving that that legal person formed, at the time of the first infringement, a single undertaking with the company found to have committed the first infringement. In that regard, it is for the Commission to prove that the legal person concerned by the second infringement already exercised, at the time of the first infringement, a decisive influence over the subsidiary involved in the first infringement. In addition, the period which separates a first infringement of the competition rules from a second infringement does not, in principle, prevent the aggravating circumstance of repeated infringement from being applied to a legal person which was not the subject of proceedings for the first infringement. However, the Commission must take into account, in its assessment of the undertaking’s propensity to infringe the competition rules, the time which has elapsed between the two infringements. Moreover, when the EU judicature reviews whether the principle of the rights of the defence has been observed, it must take all the circumstances of the case at issue into consideration, inter alia the possible difficulties of proof resulting from the time elapsed since the first infringement, structural changes in the undertaking or the evolution of the competition law rules. (see paras 96, 97)