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

(Case T-348/06)

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

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Judicial review — Scope (Art. 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 32-33)

2. Agreements, decisions and concerted practices — Prohibition — Agreements which continue to produce their effects after they have formally ceased to be in force — Application of Article 81 EC (Art. 81(1) EC) (see para. 37)

3. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — No effect (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 42, 45)

4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Arts 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 58-62)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Extent of the burden of proof (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 71, 73-74)

6. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Agreement not implemented in practice — Assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, second para.) (see paras 78-83)

7. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Ability of large undertakings to measure the impact of their conduct — Turnover to be taken into consideration (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, fourth and fifth para.) (see paras 92-95)

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 — No reversal of the burden of proof or infringement of the principle of the presumption of innocence (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 98-102, 105, 108)

9. 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 — Group turnover figure taken into account for calculating the fine — No infringement of the principle of the individuality of sanctions (Arts 81 EC and 82 EC) (see para. 106)

10. 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 used by the Commission — Parent company and subsidiary appearing as sole interlocutor during administrative procedure (Arts 81 EC and 82 EC) (see paras 111, 114)

Re:

APPLICATION, principally, for partial 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)), 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 Total Nederland NV to pay the costs.

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

(Case T-348/06)

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

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Judicial review — Scope (Art. 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 32-33)

2. Agreements, decisions and concerted practices — Prohibition — Agreements which continue to produce their effects after they have formally ceased to be in force — Application of Article 81 EC (Art. 81(1) EC) (see para. 37)

3. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — No effect (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 42, 45)

4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Arts 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 58-62)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Extent of the burden of proof (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 71, 73-74)

6. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Agreement not implemented in practice — Assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, second para.) (see paras 78-83)

7. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Ability of large undertakings to measure the impact of their conduct — Turnover to be taken into consideration (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, fourth and fifth para.) (see paras 92-95)

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 — No reversal of the burden of proof or infringement of the principle of the presumption of innocence (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 98-102, 105, 108)

9. 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 — Group turnover figure taken into account for calculating the fine — No infringement of the principle of the individuality of sanctions (Arts 81 EC and 82 EC) (see para. 106)

10. 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 used by the Commission — Parent company and subsidiary appearing as sole interlocutor during administrative procedure (Arts 81 EC and 82 EC) (see paras 111, 114)

Re:

APPLICATION, principally, for partial 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)), and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;