Judgment of the General Court (Third Chamber) of 12 December 2014 — Repsol Lubricantes y Especialidades and Others v Commission

(Case T‑562/08)

‛Competition — Agreements — Paraffin waxes market — Decision finding an infringement of Article 81 EC — Price fixing and division of markets — Proof of the existence of the agreement — Duration of the infringement — 2006 Guidelines for calculating the amount of fines — Equal treatment — Presumption of innocence — Whether unlawful conduct attributable — Liability of a parent company for infringements of the competition rules committed by its subsidiaries — Decisive influence exercised by the parent company — Presumption in the case of a 100% shareholding’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — Infringement of principle that penalties should be individual to the offender — None (Art. 81 EC) (see paras 32-48, 51, 52, 60-66, 73, 79)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Need for a sufficient statement of reasons in relation to each of the addressees (Arts 81 EC and 253 EC) (see paras 54, 108-113, 119)

3. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Sales in direct or indirect relation to the infringement — Burden of proof on the Commission — Consistent statements of cartel participants — Documentary proof (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 6 and 13) (see paras 82-99)

4. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Participation in meetings having an anti-competitive object — Included — Condition — Undertaking concerned not distancing itself from the decisions adopted — Criteria for assessment (Art. 81(1) EC) (see paras 101, 102, 243)

5. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last complete year of the infringement — Exceptional character thereof — Account taken of the average value of sales during the last three years of participation in the cartel — No breach of the principle of equal treatment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 128-135, 285)

6. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market — Included — Pursuance of negotiations on certain aspects of the restriction — No effect (Art. 81(1) EC) (see paras 143-145)

7. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti competitive object or effect — Presumption — Conditions (Art. 81(1) EC) (see paras 146, 147)

8. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proof — Proof adduced by a number of different manifestations of the infringement — Lawfulness — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Documentary proof — Criteria — Reliability of evidence produced — Evidential obligations on undertakings disputing the existence of the infringement (Art. 81(1) EC) (see paras 148, 152-162, 207, 208, 214, 221, 226, 227, 234, 237, 238, 250-252, 277)

9. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability — Scope — Consequences (Art. 81(1) EC) (see paras 149-151)

10. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Probative value of voluntary statements incriminating an undertaking by the main participants in a cartel in order to benefit from application of the Leniency Notice — Statements going against the interests of the said undertaking — High probative value (Art. 81(1) EC; Commission Notice 2002/C 45/03) (see paras 164-168, 198-201)

11. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 261)

12. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Undertakings afforded the opportunity to make known their views on the facts, objections and circumstances alleged by the Commission (Council Regulation No 1/2003, Art. 27(1)) (see paras 267-269, 282)

13. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel (Art. 81(1) EC) (see paras 293, 294)

Re:

APPLICATION for annulment of Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes) and application for a reduction of the amount of the fine imposed on the applicants.

Operative part

The Court:

1. Dismisses the action;