Judgment of the Court (Second Chamber) of 5 December 2013 — Solvay Solexis v Commission

(Case C‑449/11 P)

‛Appeal — Agreements, decisions and concerted practices — European market for hydrogen peroxide and sodium perborate — Decision finding an infringement of Article 81 EC — Concepts of ‘agreement’ and ‘concerted practice’ — Concept of a ‘single and continuous infringement’ — Calculation of the fine’

1. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Ground of appeal alleging distortion of the clear sense of the evidence — Need to indicate precisely the evidence alleged to have been distorted and to show the errors of appraisal which led to that distortion (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) (see paras 31, 32)

2. Agreements, decisions and concerted practices — Concerted practice — Definition — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Presumption that the causal link exists — Burden of reversing that presumption on the undertaking concerned — Evidence (Art. 81(1) EC) (see paras 35‑39)

3. Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Classified singly as ‘an agreement and/or concerted practice’ — Lawfulness — Consequences as to the evidence required (Art. 81(1) EC) (see paras 52, 59‑61)

4. Appeals — Jurisdiction of the Court — Challenge on grounds of fairness to the General Court’s assessment concerning the amount of a fine imposed on an undertaking — Not included — Review limited to ascertaining whether the General Court took into account all the factors essential to the assessment of the gravity of the infringement and all the arguments raised against the fine imposed (Art. 81 EC; Statute of the Court of Justice, Art. 58; Council Regulation No 1/2003, Art. 23) (see paras 74, 85)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria — Commission’s margin of discretion — Account taken of the degree of participation of an undertaking in the infringement — Scope (Art. 81 EC; Commission Communication 98/C 9/03) (see paras 75‑78, 81)

6. Competition — Fines — Amount — Determination — Division of the undertakings in question into categories with a specific starting point — Lawfulness — Conditions — Judicial review (Council Regulation No 1/2003, Art. 23; Commission Communication 98/C 9/03, point 1 A) (see paras 91, 92, 94, 98)

7. Competition — Fines — Amount — Determination — Deterrent effect — Obligation on the Commission to differentiate the undertakings involved in the same infringement in terms of their overall turnover or their turnover on the market of the product at issue — No such obligation (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, point 1 A) (see paras 100, 102 104)

Re:

Appeal brought against the judgment of the General Court (Sixth Chamber, Extended Composition) of 16 June 2011 in Case T‑195/06 Solvay Solexis v Commission by which the Court dismissed the action for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as it concerns Solvay Solexis — Duration of the infringement — Concepts of ‘agreement’ and ‘concerted practice’ — Equal treatment — Duty to state reasons.

Operative part

The Court:

1. Dismisses the appeal;