Case T-299/08

Elf Aquitaine SA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Sodium chlorate market – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Imputability of the unlawful conduct – Rights of the defence – Duty to state reasons – Principle that penalties should be applied only to the offender – Principle that penalties must be strictly defined by law – Presumption of innocence – Principle of sound administration – Principle of legal certainty – Misuse of powers – Fines – Aggravating circumstance – Deterrence – Attenuating circumstance – Cooperation during the administrative procedure – Significant added value)

Summary of the Judgment

1. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2))

2. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence – Scope

(Council Regulation No 1/2003, Arts 23 and 27(1))

3. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment

(Art. 81(1) EC)

4. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2); Council Regulation No 1/2003, Art. 23(2))

5. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment

(Art. 81(1) EC)

6. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision relating to several addresses – Need for an adequate statement of reasons in particular with respect to the entity which must bear the liability for an infringement

(Arts 81(1) EC and 253 EC)

7. Acts of the institutions – Presumption of validity – Commission decision attributing to a parent company the infringement of competition law committed by its subsidiary

(Art. 249 EC)

8. Competition – Fines – Amount – Determination – Deterrent effect

(Art. 81 EC; Counci1 Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, Sections 25 and 30)

9. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation by the undertaking concerned – Need for conduct which facilitated the Commission’s finding of an infringement

(Council Regulation No 1/2003, Arts 18 and 23(2); Commission Notice 2002/C 45/03, Sections 20, 21 and 23b))

10. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the European Union judicature

(Art. 229 EC; Council Regulation No 1/2003, Art. 31)

1. The conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking, which enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement.

In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market.

The Commission is not required to corroborate that presumption of the exercise of decisive influence by additional indicia. Even though an earlier practice of the Commission in taking decisions consisted in corroborating that presumption by additional indicia, such an assertion does not affect the conclusion that the Commission is entitled, to rely solely on the fact that a parent company held virtually all the shares in its subsidiary to presume that it exercised decisive influence over that undertaking.

(see paras 49-52, 59)

2. Respect for the rights of the defence requires that the undertaking against which proceedings have been brought for infringement of the competition rules must have been afforded the opportunity, during the administrative procedure initiated before the Commission, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty.

Regulation No 1/2003 provides in Article 27(1) that the parties are to be sent a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure, to enable those concerned to be aware of the conduct in which the Commission alleges they have been engaged and to put forward their defence before the Commission adopts a final decision.

That statement of objections constitutes the procedural safeguard applying the fundamental principle of Community law which requires observance of the rights of the defence in all proceedings. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it.

In particular, the statement of objections must specify unequivocally the legal person on whom fines may be imposed, it must be addressed to that person and it must indicate in what capacity that person is called upon to answer the allegations. It is by the statement of objections that the undertaking concerned is informed of all the essential elements on which the Commission is relying at that stage of the procedure. Consequently, it is only after notification of the statement of objections that the undertaking is able to rely in full on its rights of defence.

Thus, where the Commission, in a statement of objections, informs the parent company that it intends to impute to it, on the basis of the presumption of the exercise of decisive influence, the unlawful conduct of its subsidiary, the fact that the Commission did not carry out any measure of investigation against that company before notifying it of that statement of objections does not infringe the rights of defence of that undertaking. In this connection, that company is given the opportunity during the administrative procedure to put forward its views on the reality and relevance of the facts and circumstances alleged by the Commission in the statement of objections, both in its observations in response to the statement of objections and at a hearing before the hearing officer.

(see paras 134-140)

3. Under the principle that penalties should be applied only to the offender, a natural or legal person may be penalised only for acts imputed to it individually. That principle applies in any administrative procedure that may lead to the imposition of sanctions under competition law.

However, that principle must be reconciled with the concept of undertaking within the meaning of Article 81 EC. Thus, where the economic entity infringes the competition rules, it must, according to the principle of personal liability, answer for that infringement.

It is not a relationship between the parent company and its subsidiary in which the parent company instigates the infringement or, a fortiori, the parent company’s involvement in the infringement, but the fact that they constitute a single undertaking for the purposes of Article 81 EC that enables the Commission to address the decision imposing fines to the parent company of a group of companies.

Accordingly, the Commission is not infringing the principle that penalties should be applied only to the offender in condemning a parent company for an infringement which it is deemed to have committed itself because of its economic and legal links with its subsidiary, which enabled it to determine the latter’s conduct on the market.

(see paras 178-181)

4. The principle that penalties must be strictly defined by law requires that legislation must clearly define offences and the penalties which they attract. That condition is satisfied where the individual concerned is in a position, on the basis of the relevant provision and if need be with the help of the interpretative assistance given by the courts, to know which acts or omissions will make him criminally liable.

Under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings which infringe, in particular, Article 81 EC. In so far as a parent company and its subsidiary were considered to form an undertaking within the meaning of that latter article, the Commission is able, without committing a breach of the principle that penalties must be strictly defined by law, to impose a fine on the legal persons forming part of that undertaking.

(see paras 187-189)

5. The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

In a Commission decision imposing a fine on a parent company for an infringement of the competition rules committed by its subsidiary, in accordance with the presumption of the decisive influence of the parent company holding virtually all the shares in its subsidiary, the Commission has a discretion to decide whether it is appropriate to impute liability for an infringement to the parent company.

Consequently, since the Commission is able, but under no obligation, to impute liability for the infringement to a parent company, where the conditions on which such liability may be imputed are met, the mere fact that the Commission did not impute such liability in another case does not mean that it is under an obligation to make the same assessment in the contested decision. However, such imputation is subject to review by the European Union judicature, to which it falls to determine that the conditions of such imputation are met.

(see paras 196-198)

6. The statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

Where a decision taken in application of Article 81 EC relates to several addressees and raises a problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, in order to contain an adequate statement of reasons in regard to the parent companies of the subsidiaries which have committed the infringement, the Commission’s decision must contain a detailed statement of reasons for imputing the infringement to those companies.

(see paras 216-217)

7. The Commission’s decisions are presumed to be lawful and produce legal effects until such time as they are annulled or withdrawn. In addition, the Commission is not required to suspend the procedure brought against a company, for infringement of the competition rules, pending the decision of the European Union judicature in an action brought by the same company against another decision penalising it for other infringements of the competition rules. There is no legal provision that requires that the Commission suspend the adoption of decisions in cases relating to different facts.

(see para. 241)

8. In the context of the Commission’s power to impose fines on undertakings which commit an infringement of Article 81 EC, it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking. For the purposes of their application and their implementation, decisions adopted by the Commission under Article 81 EC must, however, be addressed to entities having legal personality. Thus, when the Commission adopts a decision pursuant to Article 81(1) EC, it must identify the natural or legal person or persons, who may be held liable for the conduct of the undertaking in question and who may be penalised on that basis, to whom the decision will be addressed.

The Guidelines on setting fines which the Commission adopts ensure legal certainty on the part of undertakings, since they determine the method which the Commission has bound itself to use for the purposes of setting fines. The administration may not depart from those Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment.

In the case of two undertakings, namely a parent company and a subsidiary, forming, at the time the infringement was committed, an undertaking within the meaning of Article 81 EC, but no longer existing in that form at the time of the adoption of the decision imposing a fine upon them, the Commission is entitled, first, to impose jointly and severally on those two undertakings which have to answer for the infringement committed, a fine pursuant to Article 23(2) of Regulation No 1/2003, and, second, to impose an increase of the basic amount of the fine under Section 30 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 on the parent company alone, given that that company’s turnover was on the date of adoption of the contested decision particularly large by comparison with the other entities penalised and it could thus more readily raise the necessary funds to pay a fine.

In that regard, the fact that the fine, imposed for deterrence on the parent company alone, is calculated by reference to the basic amount of the fine imposed jointly and severally on the two companies, which already includes a specific increase for deterrence, is not unfair.

The fine imposed jointly and severally on the two companies corresponds to the basic amount of the fine, which includes an additional increase calculated at a specified rate of the value of the subsidiary’s sales, in accordance with Section 25 of the Guidelines, ‘in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements’.

Conversely, the fine imposed on the parent company alone and including a significant increase of the basic amount of the fine is intended, in accordance with Section 30 of the Guidelines, to ‘ensure that fines have a sufficiently deterrent effect’ for undertakings whose turnover, beyond the sales of goods or services to which the infringement relates, is particularly large.

Therefore, first, the additional amount applied pursuant to Section 25 of those Guidelines, and, second, the specific increase imposed on the parent company pursuant to Section 30 of those Guidelines, correspond to two distinct objectives of deterrence, which the Commission is entitled to take into account when determining the fine.

(see paras 250-253, 255-256, 288-289)

9. The Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned. In assessing the cooperation given by members of a cartel, only a manifest error of assessment on the part of the Commission is open to censure, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, especially in comparison with the contributions made by other undertakings.

While the Commission is required to state the reasons for which it considers that information provided by undertakings under the Notice on Immunity from fines and reduction of fines in cartel cases constitutes a contribution which does or does not justify a reduction of the fine, it is incumbent on undertakings wishing to contest the Commission’s decision in that regard to show that, in the absence of such information provided voluntarily by the undertakings, the Commission would not have been in a position to prove the essential elements of the infringement and therefore adopt a decision imposing fines.

The reduction of fines in cases where the undertakings which participated in infringements of competition law have offered cooperation is justified only where it is considered that the cooperation made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it. In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession.

Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable with that of the cooperation provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine for cooperation. Moreover, the cooperation of an undertaking in the investigation gives no entitlement to a reduction in a fine where that cooperation went no further than the cooperation incumbent on it under Article 18 of Regulation No 1/2003.

(see paras 340-344)

10. As regards the review carried out by the European Union judicature in respect of Commission decisions on competition matters, more than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the General Court by Article 31 of Regulation No 1/2003 in accordance with Article 229 EC authorises the Court to vary the contested measure, even without annulling it, by taking into account all the factual circumstances, so as to amend, for example, the amount of the fine.

(see para. 379)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

17 May 2011 ( )

(Competition – Agreements, decisions and concerted practices – Sodium chlorate market – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Imputability of the unlawful conduct – Rights of the defence – Obligation to state the reasons on which the decision is based – Principle that penalties should be applied only to the offender – Principle that penalties must be strictly defined by law – Presumption of innocence – Principle of sound administration – Principle of legal certainty – Misuse of powers – Fines – Aggravating circumstance – Deterrence – Attenuating circumstance – Cooperation during the administrative procedure – Significant added value)

In Case T‑299/08,

Elf Aquitaine SA, established in Courbevoie (France), represented by É. Morgan de Rivery and S. Thibault-Liger, lawyers,

applicant,

v

European Commission, represented by X. Lewis, É. Gippini Fournier and R. Sauer, acting as Agents,

defendant,

APPLICATION for, principally, annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/38.695 – Sodium chlorate), in so far as it concerns the applicant, and, in the alternative, annulment or reduction of the fines imposed on the applicant in that decision,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 2 June 2010,

gives the following

Judgment

Background to the dispute

1 By Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/38.695 – Sodium chlorate) (‘the contested decision), the Commission of the European Communities imposed sanctions on, among other undertakings, the applicant, Elf Aquitaine SA, which until 2006 was the parent company of Arkema France (formerly Atochem SA, then Elf Atochem SA, then Atofina SA and Arkema SA) on account of their participation in a complex of agreements and concerted practices affecting the sodium chlorate market in the EEA for the period 11 May 1995 to 9 February 2000 so far as the applicant and Arkema France were concerned (recitals 12 to 15 to and Article 1 of the contested decision).

2 Sodium chlorate is a strong oxidising agent manufactured by the electrolysis of a sodium chloride water solution in a diaphragm-less cell. Sodium chlorate can be produced as a crystal product or as a solution product. Its largest application is for the manufacturing of chlorine dioxide, which is used in the pulp and paper industry for the bleaching of chemical pulp. Other applications include, to a lesser extent, drinking water purification, textile bleaching, herbicides and uranium refining (recital 2 to the contested decision).

3 The main competitors on the sodium chlorate market in the EEA were, in 1999, the following undertakings. First of all, EKA Chemicals AB (‘EKA’), whose share capital was wholly owned by the Akzo Nobel group, which held 49% of the market. Finnish Chemicals Oy, whose share capital was indirectly and wholly owned by Erikem Luxembourg SA (‘ELSA’), which held 30% of the market. Next, Arkema France, 97.55% of whose share capital was owned by the applicant between 1992 and 2000, had a 9% market share. Last, Aragonesas Industrias y Energia SAU (‘Aragonesas’), whose share capital was wholly owned between 1992 and 2000, directly or indirectly, by Uralita SA, had, as did Solvay SA/NV, a 5% share of the market, while other producers jointly had 2% of the market (recitals 13, 14, 25 to 30, 42 and 46 to the contested decision).

4 On 28 March 2003 EKA lodged an application with the Commission for immunity under the Commission notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) concerning the existence of a cartel on the sodium chlorate market (‘the cartel’). EKA supported that application by documentary evidence and an oral statement (recitals 54 and 55 to the contested decision).

5 On 30 September 2003 the Commission adopted a decision granting EKA conditional immunity in accordance with point 15 of the 2002 Leniency Notice (recital 55 to the contested decision).

6 On 10 September 2004 the Commission sent requests for information to Finnish Chemicals, Arkema France and Aragonesas, pursuant to Article 18(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recital 56 to the contested decision).

7 On 18 October 2004 Arkema France, in its response to the Commission’s request for information referred to at paragraph 6 above, submitted an application under the 2002 Leniency Notice (recital 57 to the contested decision).

8 On 29 October 2004 Finnish Chemicals lodged an application under the 2002 Leniency Notice with the Commission and provided the Commission orally with information relating to the cartel. Finnish Chemicals confirmed that application by letter of 2 November 2004 and at the same time provided documentary evidence relating to its participation in the infringement in question (recital 58 to the contested decision).

9 Beginning on 4 November 2004, the Commission sent requests for information pursuant to Article 18(2) of Regulation No 1/2003 to, among other undertakings, Arkema France, Aragonesas, EKA and Finnish Chemicals. The Commission also met the latter two undertakings. As regards the applicant, the Commission first sent it a request for information on 11 April 2008 (recitals 59 to 65 to the contested decision).

10 By letter of 11 July 2007 the Commission informed Arkema France that it intended to reject its application under the 2002 Leniency Notice (recital 563 to the contested decision).

11 By letter of the same date the Commission also informed Finnish Chemicals that it intended to grant it, under the 2002 Leniency Notice, a reduction of 30 to 50% of the amount of any fine imposed on it (recital 583 to the contested decision).

12 On 27 July 2007 the Commission adopted a statement of objections, addressed to, in addition to the applicant, EKA, Akzo Nobel NV, Finnish Chemicals, ELSA, Arkema France, Aragonesas and Uralita. The addressees responded to the statement of objections within the prescribed period (recitals 66 and 67 to the contested decision).

13 On 20 November 2007 Arkema France and the applicant, among others, exercised their right to be heard orally at a hearing before the hearing officer (recital 68 to the contested decision).

14 On 11 June 2008 the Commission adopted the contested decision, which was notified to the applicant on 16 June 2008.

15 In the contested decision, the Commission observes, in substance, that Arkema France, EKA, Finnish Chemicals and Aragonesas pursued a strategy of stabilising the sodium chlorate market, the ultimate aim of which was to allocate sales volumes of that product among themselves, to coordinate the pricing policy towards their customers and thus to maximise their margins. The functioning of the cartel was based on frequent contacts between competitors in the form of bi- or multilateral meetings and telephone conversations, but without following a fixed pattern. According to the Commission, those collusive practices took place from 21 September 1994 for EKA and Finnish Chemicals, from 17 May 1995 for Arkema France, from 16 December 1996 for Aragonesas and from 13 February 1997 for ELSA. The practices continued until 9 February 2000, at least so far as Arkema France, EKA, Finnish Chemicals and Aragonesas are concerned (recitals 69 to 71 to the contested decision).

16 As regards, in particular, the unlawful conduct of Arkema France, the Commission observes that the facts set out in the contested decision show that that undertaking participated directly in the anti-competitive practices in question. The Commission also observes that throughout the infringement period the applicant held more than 97% of the shares in Arkema France. For that reason, the Commission maintains that there are reasonable grounds for considering that Arkema France was required to follow the policy defined by its parent company and was therefore unable to act autonomously. The Commission therefore concludes that it may be presumed that the applicant exercised decisive influence over Arkema France, which is borne out by the additional indicia which it sets out (recitals 384 and 386 to the contested decision).

17 As regards the calculation of the amounts of the fines imposed on, in particular, Arkema France and the applicant, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’) (recital 498 to the contested decision).

18 First of all, the Commission states that, in order to determine the basic amount of the fine imposed on Arkema France, an amount corresponding to 19% of the value of the sales of the products affected by the cartel in question should be taken into account. First, since Arkema France participated in the infringement for at least four years and eight months, the Commission considers that that amount should be multiplied by five in order to take account of the duration of the infringement. Second, in order to deter the undertakings concerned, and in particular Arkema France, from participating in horizontal price-fixing agreements, the Commission considers it necessary to impose an additional amount corresponding to 19% of the value of those sales. The Commission therefore concludes that a fine of EUR 22 700 000 should be imposed, for which Arkema France and the applicant are to be jointly and severally liable (recitals 510 and 521 to 523 to the contested decision).

19 Furthermore, as regards the adjustment of the basic amount of the fine, the Commission observes, with respect to aggravating circumstances, that on the date of adoption of the contested decision it had already imposed sanctions on Arkema France in three decisions in which that undertaking had been held liable for earlier cartel activities. On the one hand, the Commission considers, in substance, that Arkema France’s conduct consisting in repeated infringement justifies an increase of 90% of the basic amount of the fine. On the other hand, the Commission finds no attenuating circumstance in favour of Arkema France or the applicant that would justify a reduction of the fine. In particular, the Commission considers that, when all the facts of the case are taken into account, there are ‘no exceptional circumstances’ that could justify granting Arkema France a reduction of the fine outside the scope of the 2002 Leniency Notice (recitals 525, 526, 538 and 544 to the contested decision).

20 Next, the Commission states, in substance, that in order to ensure that fines have a sufficiently deterrent effect, and in the light of the fact that the applicant has a particularly large turnover beyond the sales of goods to which the infringement relates and, last, that that turnover is in absolute terms much larger than the turnover of the other undertakings involved, it is appropriate to apply an increase of 70% of the basic amount of the fine (recitals 545, 548 and 559 to the contested decision).

21 In addition, the Commission finds that the fines to be imposed on Arkema France and the applicant, in particular, are below 10% of their respective total turnovers in 2007 and that the fines that can be imposed on them before the application of the 2002 Leniency Notice come to EUR 43 130 000 for Arkema France and to EUR 38 590 000 for the applicant (recitals 551 and 552 to the contested decision).

22 Last, the Commission considers that Arkema France must not benefit from any reduction of the fine under the 2002 Leniency Notice, since the information which it supplied to the Commission did not constitute significant added value within the meaning of point 21 of that notice. Conversely, the Commission considers that Finnish Chemicals supplied it with evidence representing significant added value for the purposes of point 21 of that notice and therefore granted that undertaking a reduction of 50% of the fine that would otherwise have been imposed on it (recitals 580, 588 and 591 to the contested decision).

23 Articles 1 and 2 of the operative part of the contested decision are worded as follows:

‘Article 1

The following undertakings infringed Article 81 [EC] and Article 53 of the EEA Agreement by participating, for the periods indicated, in a complex of agreements and concerted practices with a view to allocating sales volumes, fixing prices, exchanging commercially sensitive information on prices and sales volumes and monitoring the execution of the anti-competitive arrangements for sodium chlorate in the EEA market:

(a) [EKA], from 21 September 1994 until 9 February 2000;

(b) Akzo Nobel …, from 21 September 1994 until 9 February 2000;

(c) Finnish Chemicals …, from 21 September 1994 until 9 February 2000;

(d) [ELSA], from 13 February 1997 until 9 February 2000;

(e) Arkema France …, from 17 May 1995 until 9 February 2000;

(f) [the applicant], from 17 May 1995 until 9 February 2000;

(g) Aragonesas …, from 16 December 1996 until 9 February 2000;

(h) Uralita …, from 16 December 1996 until 9 February 2000.

Article 2

For the infringement referred to in Article 1, the following fines are imposed:

(a) EKA … and Akzo Nobel …, jointly and severally, EUR 0;

(b) Finnish Chemicals …: EUR 10 150 000, of which jointly and severally with [ELSA] (in liquidation): EUR 50 900;

(c) Arkema France … and [the applicant], jointly and severally: EUR 22 700 000;

(d) Arkema France …: EUR 20 430 000;

(e) [the applicant ]: EUR 15 890 000;

(f) Aragonesas … and Uralita …, jointly and severally: EUR 9 900 000.

…’

24 In Article 3 of the operative part of the contested decision, the Commission orders the undertakings referred to in Article 1 of that decision, first, to bring an immediate end to the infringement, in so far as they have not already done so, and, second, to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.

25 Article 4 of the operative part of the contested decision lists the addressees of the contested decision, which are the undertakings referred to in Article 1 of that decision.

Procedure and forms of order sought

26 By application lodged at the Registry of the General Court on 1 August 2008, the applicant brought the present action.

27 Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure. The Court put certain questions to the applicant and the Commission. It also requested the Commission to produce certain documents. With the exception of the transcript of EKA’s oral application for immunity, which the Commission refused to produce, the parties responded to those requests within the prescribed period.

28 The parties presented oral argument and answered the questions put by the Court at the hearing on 2 June 2010.

29 By order of 11 June 2010 in Case T‑299/08 Elf Aquitaine v Commission, not published in the ECR, the Court ordered the Commission to produce the transcript of EKA’s oral application for immunity and gave leave for that document to be consulted by the applicant’s lawyers at the Court Registry. The Commission produced that document within the prescribed period and the applicant’s lawyers consulted it at the Court Registry. In answer to a written question put by the Court, the applicant stated that while it was unable to confirm that that document was identical to the document to which it had been given access in the context of the administrative procedure before the Commission, it had no reason to doubt that it was the same document.

30 The oral procedure was closed on 16 July 2010.

31 The applicant claims that the Court should:

– principally, annul, on the basis of Article 230 EC, the contested decision, in so far as it concerns the applicant;

– in the alternative, annul or reduce, on the basis of Article 229 EC, the amount of the fines imposed on the applicant in Article 2(c) and (e) of the contested decision;

– in any event, order the Commission to pay the costs.

32 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

1. The principal claims, seeking annulment in part of the contested decision

33 In support of its application for annulment of the contested decision in so far as it concerns the applicant, the applicant puts forward 10 pleas in law. The first plea alleges breach of the rules governing the imputation of liability for an infringement within groups of companies. The second plea alleges breach of six fundamental principles as a result of the imputation to the applicant of liability for the unlawful conduct in question. The third plea alleges distortion of the body of indicia submitted by the applicant. The fourth plea alleges the existence of contradictions in the grounds of the contested decision. The fifth plea alleges breach of the principle of sound administration. The sixth plea alleges breach of the principle of legal certainty. The seventh plea alleges misuse of powers. The eighth plea alleges that the imposition of a personal fine on the applicant is unfounded. The ninth plea alleges breach of the principles and the rules that governed the calculation of the fine imposed jointly and severally on Arkema France and the applicant. The tenth plea alleges breach of the provisions of the 2002 Leniency Notice.

First plea, alleging breach of the rules governing the imputation of liability for an infringement within groups of companies

34 The applicant’s first plea, alleging that the Commission, in the contested decision, breached the rules governing the imputation of liability for an infringement within groups of companies, is divided into five parts.

First part, alleging an error of law in the imputation to the applicant of the unlawful conduct in question





– Arguments of the parties

35 The applicant maintains, in substance, that the Commission erred in law in taking the view, at recital 369 to the contested decision, that it was not required to corroborate by specific evidence the presumption that, in substance, a parent company that wholly owns its subsidiary exercises decisive influence over that subsidiary (‘the presumption of the exercise of decisive influence’).

36 First, it follows both from a considerable body of case-law and from the Commission’s previous practice when adopting decisions that the Commission is required to corroborate the presumption of the exercise of decisive influence by specific indicia showing that that influence exists. Those indicia should show either that the parent company was involved in the infringement, or that it was aware of the infringement, or that the internal organisation of the group enabled it actually to intervene in the commercial policy of its subsidiary. In particular, the applicant contends that for almost 40 years preceding the adoption of Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 – MCAA) (OJ 2006 L 353, p. 12; ‘the MCAA decision’) the Commission applied specific indicia corroborating the presumption of the exercise of decisive influence. The applicant also submits that, at recital 574 to the decision of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C.39181 – Candle waxes) (OJ 2009 C 295, p. 17; ‘the Candle Waxes decision’), the Commission acknowledged that before 2005 it did not impute liability for an infringement to a parent company without putting forward specific indicia to corroborate that presumption.

37 Second, the applicant observes that in the decision of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.587 – Organic peroxides) (OJ 2005 L 110, p. 44; ‘the Organic Peroxides decision’), the Commission did not impute liability to the applicant for the infringement found in that decision, as it took the view that Arkema France was wholly autonomous on the market.

38 Third, the applicant maintains, in substance, that the obligation for the Commission to put forward additional indicia corroborating the presumption of the exercise of decisive influence in the context of the application of Article 81 EC is supported by the case-law on the imputation to the State of a measure adopted by a public undertaking in State aid law. The applicant refers in that regard to Case C‑482/99 France v Commission [2002] ECR I‑4397 and Case T‑442/03 SIC v Commission [2008] ECR II‑1161. In the applicant’s submission, in accordance with Article 295 EC, a private shareholder in a group of companies cannot, under the principle of equal treatment, be treated less well than a public shareholder.

39 Fourth, the applicant claims that the Commission’s finding, at recital 369 to the contested decision, that it is not required to corroborate the presumption of the exercise of decisive influence by adducing additional elements to prove that a parent company controls its subsidiary is contrary to the solutions applied in most Member States of the European U nion , such as Belgium, France, Italy and the United Kingdom, and also in the United States, whose influence on Community competition law cannot be denied. First, in all those States the national competition authorities make use of a body of indicia designed to establish that a subsidiary conducts itself autonomously in relation to its parent company. Second, while it is true that the Commission is not bound by the solutions applied by the national competition authorities of the Member States, it should none the less take them into account, given the mechanisms of reinforced cooperation that govern its relations with those authorities within the European competition network.

40 The Commission contests the applicant’s arguments.

– Findings of the Court

41 First of all, it should be observed that, after setting out, at recitals 369 to 372 to the contested decision, the case-law on the imputability of the unlawful conduct of a subsidiary to its parent company, the Commission states the following, at recitals 386 and 387 to that decision:

‘(386) Throughout the period of the infringement, [the applicant] held more than 97% of the shares in [Arkema France]. Given that, under these circumstances, there are reasonable grounds for considering that the subsidiary will have to follow the policy laid down by its parent company (and thus not act autonomously) and that the parent company will encounter no obstacles in setting such policy for its subsidiary, it can be presumed that [the applicant] exercised decisive influence over [Arkema France]. In addition, there are other elements which confirm the presumption that [the applicant] did in fact exercise decisive influence. To begin with, the members of the Conseil d’Administration (Board of Directors) of [Arkema France] were all appointed by [the applicant]. Furthermore, between 1994 and 1999 Mr [P.] was a member of the general management board of [Arkema France] and of [the applicant] and a member of the board of directors of [Arkema France]. The same applies for Mr [I.], who was a member of the board of directors of [Arkema France] between 1994 and 1998 and of [the applicant’s] general management board between 1994 and 1997. Likewise, Mr [W.] sat on [Arkema France’s] board of directors between 1994 and 1999 and was appointed to [the applicant’s] general management board in 1999. Furthermore, a number of other individuals, such as Mr [D.] (1994-2000) and Mr [R.] (1994-1997), were at the same time members of the board of directors of [Arkema France] and of [the applicant]. Given these various overlaps of personnel both directing and overseeing [Arkema France’s] business, and which (as regards the directors) had been appointed and – it must be assumed – could have been removed by [the applicant], the latter was clearly informed of all decisions to be taken by [Arkema France] and could influence them at any time. There was also no other significant shareholder which could have exerted an influence on the commercial policy to be followed by the subsidiary.

(387) Given the presumption following from [the applicant’s] shareholding in [Arkema France] throughout the infringement (more than 97%) and further taking into account the organisation links, the Commission considers that [the applicant] exercised decisive influence over [Arkema France].’

42 Furthermore, at recitals 396 to 415 to the contested decision, the Commission rejects the arguments which Arkema France and the applicant raised in their observations in response to the statement of objections and by which they sought to challenge the imputation to the applicant of liability for the infringement in question.

43 It therefore follows from the grounds of the contested decision set out at paragraphs 41 and 42 above that the Commission imputed liability for the infringement in question to the applicant on the basis of the presumption that a parent company which owns more than 97% of the shares of its subsidiary exercises decisive influence over the subsidiary. The Commission also considered that that presumption was corroborated by additional indicia which it had set out in the contested decision and also that the arguments put forward by Arkema France and the applicant in the observations in response to the statement of objections did not suffice to rebut that presumption.

44 The Court must therefore consider whether, as the applicant maintains, the Commission erred in law in finding that the fact that the applicant held more than 97% of Arkema France’s shares was in itself sufficient for liability for the infringement in question to be imputed to it.

45 In Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 54, the Court of Justice observed that Community competition law referred to the activities of undertakings (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 59) and that the concept of undertaking covered any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 112; Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraph 107; and Case C‑205/03 P FENIN v Commission [2006] ECR I‑6295, paragraph 25).

46 The Court of Justice has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 55 and the case-law cited).

47 When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 56 and the case-law cited).

48 The infringement of competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 57 and the case-law cited).

49 It is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 58 and the case-law cited).

50 That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law mentioned at paragraphs 45 and 46 above. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 59 and the case-law cited).

51 In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 60 and the case-law cited).

52 In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 61 and the case-law cited).

53 While it is true that the Court of Justice referred in Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraphs 28 and 29, not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact none the less remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which the General Court had based its reasoning and not to make the application of the presumption subject to the production of additional indicia relating to the actual exercise of influence by the parent company (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 62 and the case-law cited).

54 It is clear from all those considerations that where a parent company has a 100% shareholding in its subsidiary there is a rebuttable presumption that that parent company exercises a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 45 above, paragraph 63 and the case-law cited).

55 It is clear from the case-law of this Court, moreover, that where a parent company holds virtually all the shares in its subsidiary there are reasonable grounds for concluding that the subsidiary does not determine its conduct on the market autonomously and that it therefore forms, with the parent company, the same undertaking for the purposes of Article 81 EC (see, to that effect, Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290 and the case-law cited).

56 In the present case, it must be stated, first, that, as the Commission observed at recital 386 to the contested decision, the applicant does not deny that it held more than 97% of Arkema France’s shares at the material time and, more specifically, that it held 97.55% of those shares, as stated at recital 13 to the contested decision. Second, although the applicant maintains that the fact that it was the sole owner of shares in Arkema France cannot corroborate the presumption of the exercise of decisive influence, it puts forward no argument capable of calling in question the Commission’s finding, at recital 396 to the contested decision, that the fact that a parent company owns virtually all the shares in its subsidiary can be assimilated to holding all that capital, since, in principle, ‘the remaining shareholders will typically have no special minority rights but only a financial interest in the business of the subsidiary’.

57 Consequently, the Commission was correct to presume in the contested decision, in accordance with the case-law set out at paragraphs 45 to 55 above, that the applicant exercised decisive influence over Arkema France, on the basis of the finding that it held virtually all the shares in that subsidiary.

58 None of the arguments put forward by the applicant invalidates that conclusion.

59 First, as regards the arguments that, first, it follows both from the case-law and from the Commission’s practice in previous decisions before the adoption of the MCAA decision that the Commission is required to corroborate the presumption of the exercise of decisive influence by specific indicia, they must be rejected as unfounded. As is clear from paragraphs 45 to 55 above, it was in accordance with established case-law that the Court of Justice observed, in Akzo Nobel and Others v Commission, paragraph 45 above, that the Commission was not required to corroborate that presumption by additional indicia. Furthermore, even though, as the Commission stated in the Candle Waxes decision, its practice in taking decisions before the adoption of the MCAA decision consisted in corroborating the presumption of the exercise of decisive influence by additional indicia, such an assertion cannot affect the conclusion, set out at paragraph 57 above, that the Commission was entitled, in the contested decision, to rely on the sole fact that the applicant held virtually all the shares in Arkema France to presume that it exercised decisive influence over that undertaking.

60 Second, the argument that the Commission erred in law in imputing liability for the unlawful conduct in question to the applicant, when it had not imputed liability in the Organic Peroxides decision, must be rejected as unfounded. In so far as, as is clear from paragraphs 45 to 55 above, it was on the basis of a correct interpretation of the concept of undertaking within the meaning of Article 81(1) EC that the Commission, in the contested decision, imputed liability for the infringement in question to the applicant, the mere fact that the Commission did not impute liability in a previous decision penalising Arkema France cannot call in question the legality of the contested decision in that respect. Furthermore, since the Commission is able, but under no obligation, to impute liability for the infringement to a parent company (see, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 82, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 331), the mere fact that the Commission did not impute liability in the Organic Peroxides decision does not mean that it is required to make the same assessment in a subsequent decision (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931 (‘PVC II’), paragraph 990).

61 Third, in so far as the applicant claims, in substance, that France v Commission, paragraph 38 above, paragraphs 50 to 52, 55 and 56, and SIC v Commission, paragraph 38 above, paragraphs 94, 95, 98, 99, 101 to 105 and 107, tend to confirm that the Commission is required to adduce additional indicia corroborating the presumption of the exercise of decisive influence on which it relies in the context of the application of Article 81 EC, that argument must be rejected as ineffective. The paragraphs in question, which dealt with the question whether a measure taken by a public undertaking can be imputed to the State and, accordingly, whether such a measure can be characterised as State aid within the meaning of Article 87 EC, have no bearing on the conditions of the imputation of liability for an infringement of Article 81 EC to a parent company, nor do they preclude the existence of the presumption of the exercise of decisive influence in relation to an infringement of Article 81 EC, the lawfulness of which has been expressly recognised by the European Union judicature, as is clear from the case‑law set out at paragraphs 45 to 55 above.

62 Fourth, the argument that, in substance, the case-law in a number of Member States of the European Union and in the United States requires that the exercise of decisive influence by the parent company over the subsidiary must be corroborated by specific indicia must be rejected as ineffective. Apart from the fact that the case-law of those States is not binding on the Commission and does not constitute the relevant legal framework by reference to which the lawfulness of the contested decision must be examined, the fact that the presumption of the exercise of decisive influence is not recognised by the case-law of those States, even if it were made out, would not in any event mean that it was unlawful in Community law.

63 In the light of the foregoing considerations, the first part must be rejected as unfounded in part and as ineffective in part.

Second part, alleging breach of the principles of the legal and economic autonomy of companies

– Arguments of the parties

64 The applicant maintains that when the presumption of the exercise of decisive influence is not, as was the case in the Commission’s practice in taking decisions before the adoption of the MCAA decision, corroborated by additional indicia confirming that the parent company interfered with its subsidiary’s activities on the market affected by the infringement, such a presumption is incompatible with the principle of autonomy of legal persons, since it means that the parent company is automatically liable for the infringements committed by its subsidiary.

65 First, the applicant claims that it is only by way of duly justified exception to the principle of the economic autonomy of legal persons that a parent company can be recognised as coming within the perimeter of the undertaking for the purposes of Article 81 EC. In such an exceptional situation, a parent company could then be imputed with liability for the infringement committed by its subsidiary and be held jointly and severally liable to pay the fine imposed on the subsidiary, but it could not be ordered to pay a fine in its personal capacity.

66 The applicant observes that company law in the Member States of the European Union enshrines the principle that legal persons are legally autonomous, and that includes subsidiaries whose shares are wholly owned by their parent company. That principle flows from the attributes of legal personality and has the effect that each company has full legal personality and owns its own assets and that each company is fully responsible for its own acts, including for the consequences of its economic activities on the market. In that regard, the applicant states that the principle of the economic autonomy of a subsidiary, which follows from its legal autonomy, has been recognised by the case-law. That principle also constitutes a fundamental element of the proper functioning of modern economies. Consequently, the applicant and Arkema France, as distinct legal persons, both have their own legal and economic autonomy.

67 Second, the applicant maintains that the principle of the economic autonomy of the subsidiary represents the expression in concrete terms of the subsidiary’s use of all the legal attributes of its legal personality. Analysis of the laws of most Member States of the European Union shows that the principle of autonomy of legal persons forms part of the fundamental legal bases on which their social organisation rests, and derogation from that principle is possible only in exceptional circumstances, as may be seen from the national case-law of the various States; and, furthermore, the Commission is required, when it applies competition law, not to ignore the case-law of the courts of the Member States of the European Union, as otherwise it will jeopardise the necessary convergence of the various systems of competition law within the European and international competition networks.

68 The Commission contests the applicant’s arguments.

– Findings of the Court

69 The applicant maintains, in substance, that by imputing to it liability for the infringement in question, the Commission breached the principles according to which companies enjoy legal and economic autonomy.

70 However, without there being any need to rule on the extent of the principles according to which companies enjoy legal and economic autonomy, or even on the existence of the latter of those principles, it is sufficient to state that they cannot in any event mean that a company all or virtually all of whose shares are owned by another company necessarily acts autonomously on the market merely because it has its own legal personality or its own economic means. Such an assumption would completely disregard the numerous possibilities which exist in practice for a parent company holding all or virtually all the shares of its subsidiary to influence the conduct of its subsidiary, whether formally or informally.

71 Accordingly, the alleged principles of legal and economic autonomy on which the applicant relies in the present case have not been breached by the Commission.

72 The arguments which the applicant puts forward in that regard cannot succeed. First, as regards the arguments that the presumption of the exercise of decisive influence is contrary to the law applicable in some Member States of the European Union, they must be rejected as unfounded, for the same reasons as those set out at paragraph 62 above, namely that the laws of those States do not constitute the relevant legal framework by reference to which the lawfulness of the contested decision falls to be assessed. Second, in so far as the applicant maintains that by imputing to it liability for the infringement in question the Commission breached the company law applicable in the Member States of the European Union and, accordingly, the principle of subsidiarity, it must be stated that it is in accordance with Article 81(1) EC that, when an economic entity infringes the competition rules, it must answer for that infringement, which the Commission is empowered to condemn pursuant to Article 23(2) of Regulation No 1/2003.

73 In the light of the foregoing considerations, the second part of the first plea must be rejected as unfounded.

Third part, alleging an error relating to the fact that the indicia which the Commission applied in the contested decision do not corroborate the presumption of the exercise of decisive influence

– Arguments of the parties

74 The applicant submits, in substance, that the Commission made an error of law and manifest errors of assessment in considering that the three additional elements set out at recital 386 to the contested decision (see paragraph 41 above) corroborated the presumption of the exercise of decisive influence. In that regard, the applicant maintains, in substance, that the fact that it appointed the members of its subsidiary’s board of directors and the fact that five members of Arkema France’s general management board or board of directors sat on the applicant’s general management committee or its board of directors do not corroborate that presumption.

75 The Commission contests the applicant’s arguments.

– Findings of the Court

76 According to the case-law set out at paragraphs 52 to 55 above, the Commission is not required to corroborate, by means of additional elements, the presumption of the exercise of decisive influence which it is entitled to apply when a parent company owns all or virtually all the shares of its subsidiary, but, on the contrary, it is for the applicant, in order to rebut that presumption, to adduce sufficient evidence capable of showing that its subsidiary acted autonomously on the market.

77 Therefore, even on the view that, as the applicant asserts, the Commission was wrong to rely, at recital 386 to the contested decision, on indicia that were not capable of corroborating the presumption of the exercise of decisive influence, such an error would not in any event be of such a kind as to call in question the fact that the Commission was entitled to rely on the mere fact that the applicant owned virtually all the shares in its subsidiary to presume that it exercised decisive influence on the subsidiary.

78 Accordingly, the third part must be rejected as ineffective, without there being any need to examine the arguments whereby the applicant seeks, in substance, to challenge the relevance of the indicia on which the Commission relied in the contested decision in order to corroborate the presumption of the exercise of decisive influence.

Fourth part, alleging that the Commission was wrong to consider that the applicant had not adduced a body of indicia rebutting the presumption of the exercise of decisive influence

– Arguments of the parties

79 The applicant maintains, in substance, that the Commission was wrong to consider that it had not submitted a body of consistent indicia rebutting the presumption of the exercise of decisive influence and establishing, first, that Arkema France acted autonomously on the market and, second, that the applicant did not interfere with its subsidiary’s commercial policy. The applicant states that, contrary to the Commission’s assertion, the body of indicia which it adduced was not confined to establishing that the applicant had not participated in the cartel or that it was not aware of the cartel.

80 In the first place, the applicant claims that it showed by a body of consistent indicia that Arkema France acted autonomously on the market.

81 First, the applicant observes, at the outset, that, as it observed in the context of the first part of the first plea (see paragraph 37 above), the Commission recognised that Arkema France enjoyed autonomy on the market in the Organic Peroxides decision. The applicant further maintains that, if in its decision 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) (OJ 2006 L 353, p. 54; ‘the Hydrogen Peroxide decision’), the Commission at no time attempted to corroborate by any specific element the presumption of the exercise of decisive influence, that was because it had then considered that no indicium existed that would support that presumption. Last, in so far as sodium chlorate belongs to the same family of products as those referred to in the Organic Peroxides decision and the Hydrogen Peroxide decision, and in so far as it was managed within the Elf Aquitaine group in exactly the same way as the products to which those two decisions related, the Commission cannot properly claim, in the context of the present case, that the applicant interfered with Arkema France’s commercial strategy.

82 Second, the applicant maintains that Arkema France was part of a group characterised by the decentralised management of its subsidiaries and that, consequently, the applicant operated at the head of the group only in its capacity as a non-trading holding company and had no involvement in the operational management of its subsidiaries. For that reason, the Commission ought not to have imputed to the applicant liability for the infringement in question, just as, for the same reason, it had not imputed such liability to one of the parent companies penalised in its decision of 20 October 2004 relating to a proceeding under Article 81 [EC] (Case COMP/C.38.238 – Raw tobacco – Spain) (OJ 2007 L 102, p. 14; ‘the Raw Tobacco Spain decision’).

83 Third, the applicant maintains that Arkema France always defined its commercial strategy autonomously.

84 Contrary to the Commission’s assertion at paragraph 324 of the statement of objections, and as the Commission recognised at the hearing before the hearing officer, the applicant never adopted or approved the activity plan or the activity budget of Arkema France specifically linked to sodium chlorate. On the contrary, Arkema France had at the material time all the means and the organisational, legal and financial resources necessary in order to define the commercial strategy of the activities linked with sodium chlorate and to manage those activities.

85 Furthermore, the applicant puts forward a series of arguments whereby it seeks to establish that Arkema France acted autonomously on the market. First of all, Arkema France had full power to enter into contracts without the prior authorisation of the parent company, which enabled it to manage its commercial policy in complete autonomy. Next, Arkema France was always free to define the range of products or services which it offered on the sodium chlorate market, since the applicant never gave any instructions or directions to its subsidiary concerning its production, the prices charged and the outlets of its production. In addition, Arkema France enjoyed complete freedom, without any interference on the part of its parent company, to define its sales objectives and its overall margins, since none of the applicant’s staff was capable of being involved in that type of decision. The applicant, moreover, was never present on the markets, or upstream or downstream of the markets, on which its subsidiary operated. Last, Arkema France acted on the sodium chlorate market in its own name and on its own account and not as the applicant’s representative or commercial agent.

86 Fourth, in the applicant’s submission, Arkema France enjoyed complete financial autonomy. Such an assertion follows from the considerations set out at paragraphs 81 to 85 above and also from the very small scale of its sodium chlorate activity within the group at the material time. The applicant adds that the financial control which it exercised over Arkema France was very general and could not therefore apply to the activity related to sodium chlorate.

87 Fifth, the applicant maintains that Arkema France did not inform it about its activity on the market and that the mere fact that it submitted its accounts to the applicant remained strictly within the limits of the obligations of a holding company by reference to the applicable accounting rules and the rules on financial regulation. Accordingly, the submission of the accounts was very general and did not cover Arkema France’s commercial policy.

88 Sixth, the applicant observes that, in the light of all the considerations set out at paragraphs 81 to 87 above, the Commission ought to have found that Arkema France’s activity was not subject to instructions from the parent company. Furthermore, it follows both from the case-law and from the Commission’s practice in taking decisions that all the indicia put forward by the applicant in order to rebut the presumption of the exercise of decisive influence are relevant for the purpose of demonstrating that its subsidiary was autonomous. The Commission’s rejection of the indicia which the applicant supplied amounts to a de facto denial of that mode of evidence as a means of rebutting that presumption.

89 In the second place, the applicant claims that the Commission was wrong to reject, at recital 370 to the contested decision, the probative nature of the fact that it did not participate in the infringement committed by its subsidiary and also of the fact that the applicant was unaware of that infringement as a ground for precluding its liability, although the Commission expressly acknowledged in the contested decision that the applicant had never been directly or indirectly involved in the infringement in question. However, participation in or knowledge of an infringement is accepted as a relevant indicium, by the Commission and by the European Union judicature, in the context of the imputation to a parent company of liability for that infringement.

90 In the third place, the applicant submits that the Commission was wrong to consider, at recital 403 to the contested decision, that the fact that the applicant was not involved on the sodium chlorate market in the EEA or on the markets upstream or downstream of that product did not constitute evidence of its independence. Such a position is incompatible with the case-law established in the judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR.

91 The Commission contests the applicant’s arguments.

– Findings of the Court

92 The applicant maintains, in substance, that it submitted a body of indicia showing that Arkema France acted autonomously on the sodium chlorate market and that the applicant did not interfere with its subsidiary’s commercial policy.

93 It must be borne in mind that, first, as follows from the case-law referred to in particular at paragraphs 52 to 55 above, when the Commission relies on the presumption of the exercise of decisive influence in order to impute liability for an infringement to a parent company, it is for the parent company to rebut that presumption by adducing sufficient evidence capable of demonstrating that its subsidiary acts autonomously on the market. Second, in order to establish that its subsidiary acts autonomously on the market and therefore to rebut that presumption, the parent company must submit any element relating to the organisational, economic and legal links between itself and its subsidiary that is of such a kind as to demonstrate that the two undertakings do not form a single economic entity.

94 In the present case, the Court must therefore examine whether the Commission was entitled to consider that the elements of the body of indicia which the applicant submitted did not serve to establish that Arkema France acted autonomously on the market and to rebut the presumption of the exercise of decisive influence.

95 First, as regards the applicant’s argument that the position adopted by the Commission in the Organic Peroxides decision and in the Hydrogen Peroxide decision shows that Arkema France acted autonomously on the market, that argument must be rejected as unfounded. First of all, it should be observed that the applicant misinterprets those decisions, since the Commission did not conclude that Arkema France acted autonomously, either, in particular, on the sodium chlorate market or, generally, on the other product markets on which it was active. It follows from Article 1 of the Organic Peroxides decision, in particular, that the Commission merely imposed a penalty on Arkema France (formerly Atofina), without ruling on whether liability for that infringement should be imputed to the applicant. Furthermore, it must be held that, in the Hydrogen Peroxide decision, the Commission concluded in substance, notably at recital 427 to that decision, that liability for the infringement at issue in that decision should be imputed to the applicant. Accordingly, neither of those decisions permits the conclusion that the Commission considered, in circumstances similar to those of the present case, that Arkema France acted autonomously on the market.

96 Furthermore, in so far as, as stated at paragraph 60 above, the Commission is able, but is under no obligation, to impute liability for an infringement to a parent company and in so far as it was on the basis of a correct interpretation of Article 81 EC that, in the present case, it imputed liability for the infringement in question to the applicant, any finding that the Commission, in previous cases, either considered that there was no need to impute such liability, or corroborated the presumption of the exercise of decisive influence by additional indicia, does not in any event permit the conclusion that in the present case it erred in law by imputing liability for the infringement in question to the applicant.

97 Second, as regards the applicant’s arguments that Arkema France’s autonomy is borne out by the decentralised management of the Elf Aquitaine group and by the fact that the applicant was merely a ‘non-trading holding company’ which did not interfere with the operational management of its subsidiaries and, accordingly, that the Commission ought not to have imputed to it liability for the infringement, as it also refrained from doing, with respect to a different parent company, in the Raw Tobacco Spain decision, they must also be rejected as unfounded.

98 First of all, it should be observed, on the one hand, that the assertion that the applicant is a ‘non-trading holding company’ is not supported by any specific element capable of establishing that the applicant did not exercise any decisive influence over its subsidiary. As may be seen from the case-law set out at paragraph 60 above, on the other hand, the fact that the Commission did not impute liability to a parent company for an infringement in the Raw Tobacco Spain decision does not, in any event, affect the finding that the conditions for imputation of such liability in the contested decision were satisfied.

99 Furthermore, and in any event, in the context of a group of companies a holding company’s task is to consolidate the shareholdings in various companies and its function is to ensure unity of direction. It cannot therefore be precluded that the applicant exercised decisive influence over the conduct of its subsidiary by coordinating, in particular, financial investments within the Elf Aquitaine group. In addition, the internal allocation of the applicant’s different activities, having characteristics of decentralised management, between different divisions or departments is a normal phenomenon within groups of companies such as that headed by the applicant. Accordingly, that argument does not in any way rebut the presumption that the applicant and Arkema France constituted a single undertaking for the purposes of Article 81 EC.

100 Third, in so far as the applicant maintains, first, that Arkema France always defined its commercial strategy on the sodium chlorate market autonomously, since the applicant never adopted or approved Arkema France’s activity plan and activity budget specifically linked to that product and since Arkema France enjoyed, in substance, the capacity to act autonomously on the market and, second, that Arkema France had complete financial autonomy, since the applicant’s control of its subsidiary was very general, those arguments must also be rejected as unfounded.

101 In effect, apart from the fact that the applicant’s arguments are not supported by any specific element, it must be observed first of all that the fact that the applicant never adopted or approved Arkema France’s activity plan and activity budget does not prove that it could not modify them, or reject them, or control their application.

102 Nor can it be precluded that the applicant exercised decisive influence over its subsidiary by coordinating, in particular, financial investments within the Elf Aquitaine group.

103 Last, although, as the applicant maintained, moreover, in its response to the statement of objections (see page 71 of that response) and as is apparent from recital 392 to the contested decision, the applicant controlled the most important commitments of its subsidiary, that circumstance merely reinforces the Commission’s conclusion that the subsidiary was not autonomous by reference to the applicant.

104 Fourth, the applicant’s argument that Arkema France did not inform it about its activity on the market and submitted its accounts to the applicant only in very general terms, in accordance with French law and its statutes, must be rejected as unfounded. In that regard, apart from the fact that it must be observed that that argument is not supported by any specific element, the applicant’s recognition, as set out at paragraph 103 above, of the fact that it controlled its subsidiary’s most important commitments tends to contradict that argument.

105 Fifth, in so far as the applicant claims that it never participated in the infringement, that it was never aware of the infringement and that it was not involved either upstream or downstream of the sodium chlorate market, just as it was not involved in that market, which was of minor importance to the applicant, it must be held that such elements are not capable of establishing Arkema France’s autonomy. First of all, it must be borne in mind that, in accordance with the case-law, it is not a relationship between the parent company and its subsidiary in which the parent company instigates the infringement or, a fortiori, the parent company’s involvement in the infringement, but the fact that they constitute a single undertaking that enables the Commission to address the decision imposing fines to the parent company of a group of companies (Michelin v Commission, paragraph 55 above, paragraph 290). Nor can any inference be drawn from the fact that the applicant and Arkema France operated on separate markets or that the sodium chlorate market was of minor importance to the applicant. It must be held that, in a group such as that headed by the applicant, the allocation of tasks is a normal phenomenon which does not serve to rebut the presumption that the applicant and Arkema France constituted a single undertaking for the purposes of Article 81 EC. Accordingly, those arguments must be rejected as ineffective.

106 Sixth, as regards the applicant’s argument that the Commission de facto denied it the right to rebut the presumption of the exercise of decisive influence by taking the view that the indicia which it had submitted did not serve to establish Arkema France’s autonomy, it must be rejected as unfounded. In effect, in the contested decision, not only did the Commission not contest the applicant’s right to submit indicia to rebut the presumption of the exercise of decisive influence but it was after examining the body of indicia which the applicant had submitted to the Commission that the latter correctly concluded, as may be seen from the findings set out at paragraphs 95 to 105 above, that the elements of that body of indicia did not serve to rebut the presumption of the exercise of decisive influence.

107 In the light of all the foregoing considerations, it must be concluded that the Commission was correct to consider that the applicant had not adduced evidence capable of rebutting the presumption of the exercise of decisive influence.

108 Accordingly, the fourth part of the first plea must be rejected as unfounded in part and as ineffective in part.

Fifth part, alleging transformation of the presumption of the exercise of decisive influence into an irrebuttable presumption

– Arguments of the parties

109 The applicant maintains that, in rejecting the body of indicia which the applicant had submitted to it, the Commission transformed the presumption of the exercise of decisive influence, which should be a rebuttable presumption, into an irrebuttable presumption.

110 In the first place, the applicant claims that the transformation of a rebuttable presumption into an irrebuttable presumption constitutes a breach of the principle of the presumption of innocence. First of all, that transformation constitutes a probatio diabolica, that is to say, a proof that is impossible to challenge and therefore a proof that is inadmissible in the light of the case-law. Next, at the hearing the applicant asserted that such a presumption was contrary to the principle of the presumption of innocence enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted by the European Court of Human Rights in the Salabiaku v. France judgment of 7 October 1988, Series A no. 141‑A, § 28, and in the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1), which, pursuant to the first subparagraph of Article 6(1) TEU, has the same legal value as the Treaties. Last, in answer to the questions put by the Court at the hearing, the applicant stated that it considered that Akzo Nobel and Others v Commission, paragraph 45 above, was incompatible with the abovementioned provisions.

111 In the second place, the applicant maintains that the Commission made the presumption of the exercise of decisive influence which it established in the contested decision impossible to rebut.

112 First, it follows from recitals 396 and 412 to the contested decision that the Commission itself considers that the rebuttal of the presumption of the exercise of decisive influence is in practice virtually impossible to effect, since the Commission states at those recitals that ‘what is presumed is true in almost all cases’.

113 Second, the Commission refused to take into consideration the indicia which the applicant had put forward in order to rebut the presumption of the exercise of decisive influence, although where such indicia are invoked by the Commission they enable it to corroborate that presumption.

114 Third, it follows from recital 401, in fine, to the contested decision that the Commission wrongly considers that a parent company must be held liable for an infringement whether or not it has interfered with its subsidiary’s activity, whether or not it has allowed the subsidiary to act freely, and whether or not it was aware of the infringements committed by that subsidiary.

115 Fourth, the Commission failed to draw the appropriate inferences from its error of interpretation, which it acknowledged at the hearing before the hearing officer, of the observations formulated by Arkema France on 18 October 2004, in answer to the request for information which the Commission had sent to it on 10 September 2004 and in which it had confused Elf Atochem and the applicant.

116 Fifth, the Commission relied in the contested decision not on specific elements showing that the applicant did in fact exercise decisive influence over Arkema France’s commercial management, but on mere unsubstantiated assertions, which constitute other presumptions and assumptions which the Commission never verified.

117 Sixth, it should be inferred from the rejection of all the elements in the body of indicia submitted by the applicant that the Commission requires negative documentary evidence that a parent company did not interfere with its subsidiary’s commercial policy.

118 The Commission contests the applicant’s arguments.

– Findings of the Court

119 The applicant claims, in substance, that in rejecting the indicia which it had supplied to it, the Commission transformed the presumption of the exercise of decisive influence into an irrebuttable presumption. In the applicant’s submission, such a presumption is unlawful under the ECHR and the Charter of Fundamental Rights of the European Union and also under the case-law of the European Union judicature and the European Court of Human Rights.

120 In that regard, it should be observed that, in accordance with the case-law cited at paragraph 52 above, the applicant is not required to adduce evidence that it did not interfere in the management of its subsidiary, but solely to adduce sufficient evidence to show that its subsidiary acted independently on the market in question.

121 The fact that the applicant did not, in the present case, adduce evidence capable of rebutting the presumption of the exercise of decisive evidence, as is clear from the examination of the fourth part of the first plea (see paragraphs 95 to 106 above), does not mean that that presumption cannot be rebutted in any circumstances.

122 For that reason, first, the applicant’s argument set out at paragraph 110 above, that, in substance, the presumption of the exercise of decisive influence which the Commission established in the contested decision and the lawfulness of which was recognised by the Court of Justice in Akzo Nobel and Others v Commission, paragraph 45 above, is contrary to the principle of the presumption of innocence as recognised in the Charter of Fundamental Rights of the European Union and the ECHR, and as interpreted by the European Court of Human Rights and the European Union judicature, must be rejected as ineffective. Second, the arguments set out at paragraphs 111 to 117 above, that, in substance, the Commission was wrong to consider that the indicia which the applicant had supplied had not established that the applicant did not exercise decisive influence over Arkema France, must be rejected as unfounded, since, as stated in the context of the examination of the fourth part of the first plea (see paragraphs 95 to 106 above), it was because none of the indicia submitted by the applicant permitted the conclusion, in the present case, that Arkema France acted autonomously on the market that the Commission, in the contested decision, imputed liability for the infringement to the applicant.

123 Accordingly, the fifth part of the first plea must be rejected as unfounded in part and as ineffective in part and, consequently, the first plea must be rejected in its entirety.

Second plea, alleging breach of six fundamental principles, resulting from the imputation to the applicant of the unlawful conduct in question

124 The applicant maintains, in substance, that the Commission breached six fundamental principles by imputing to it the unlawful conduct of Arkema France. The present plea is therefore divided into six parts.

First part, alleging breach of the applicant’s rights of defence

– Arguments of the parties

125 The applicant maintains, in substance, that its rights of defence were breached before and after the statement of objections was notified to it.

126 In the first place, the applicant claims that the Commission’s assessment at recital 406 to the contested decision that it was not required to apply any particular diligence towards the applicant before issuing the statement of objections is invalidated by the case-law as established in Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10921 and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725. The applicant maintains that the Commission ought to have made use of its investigative powers, before issuing the statement of objections, in order to gather indicia corroborating the presumption of the exercise of decisive influence, instead of relying solely on the indicia supplied by Arkema France. At the hearing the applicant stated that such an obligation also follows from Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501 and from the Commission’s Best Practices on the conduct of proceedings concerning Articles 101 TFEU and 102 TFEU (‘the “Best Practices” code’), which at the date of the hearing was available on the Commission’s internet site.

127 Next, in the absence of measures of investigation undertaken against it, the applicant was deprived of its right to explain, before the adoption of the statement of objections, the way in which the Elf Aquitaine group functioned, its relationship with Arkema France and its purely passive role in the management of its sodium chlorate activity. The applicant was also unable to check the veracity of the information provided by Arkema France and for which that undertaking had requested confidential treatment, such as, for example, the applicant’s turnover which Arkema France had supplied to the Commission in answer to a request for information.

128 Furthermore, since the investigation related to the period following Arkema France’s departure from the Elf Aquitaine group, on 18 May 2006, the Commission could not obtain complete answers to the questions which it had put to Arkema France. The applicant therefore lost the opportunity, first, to secure a modification of the objections raised against it by demonstrating, at the investigation stage, that the infringement by Arkema France could not be imputed to it and, second, to avoid the imposition of two separate fines. The applicant added at the hearing that in so far as the statement of objections was received by it at a time when Arkema France was no longer part of the Elf Aquitaine group and when four years had elapsed since the beginning of the investigation, it no longer had evidence enabling it to defend itself effectively at the date of notification of the statement of objections.

129 Last, the alteration of the applicant’s ability to defend itself was aggravated by the incoherent and contradictory nature of the position adopted by the Commission in the MCAA decision, in Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) (OJ 2006 L 322, p. 20; ‘the Methacrylates decision), in the Hydrogen Peroxide decision and in the contested decision.

130 Furthermore, at the hearing the applicant observed, first, that the Court of Justice had recognised the penal nature of fines in competition matters in Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287; the judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission and Council, not published in the ECR; and Case C‑45/08 Spector Photo Group and Van Raemdonck [2009] ECR I‑12073, and, second, that the Charter of Fundamental Rights of the European Union, which entered into force on 1 December 2009, was of immediate application in disputes pending before this Court. In that connection, the applicant maintains that its fundamental rights have been breached, since the Commission wrongly considered that ‘it is the undertaking, and not each of the legal persons taken separately, that must benefit from fundamental rights’.

131 In the second place, the applicant maintains that it follows from recitals 402 to 406 to the contested decision that the Commission, in breach of the requirements laid down in the case-law, failed to examine carefully all the elements of the body of indicia which it had submitted in order to rebut the presumption of the exercise of decisive influence, since it merely rejected those elements by unsubstantiated assertions, assumptions and purely theoretical presumptions, which do not correspond to the reality of the operation of the Elf Aquitaine group at the material time.

132 The Commission contests the applicant’s arguments.

– Findings of the Court

133 The applicant claims that the Commission breached its rights of defence, first, by failing to carry out any measure of investigation against the applicant before notifying it of the statement of objections and, second, by failing to examine carefully, after notification of the statement of objections, all the elements of the body of indicia which the applicant had submitted in order to rebut the presumption of the exercise of decisive influence.

134 According to consistent case-law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 10, and Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I‑865, paragraph 21).

135 Like Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑1962, p. 87), which was repealed and replaced by Regulation No 1/2003, the latter regulation provides, in Article 27(1), that the parties are to be sent a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure (Aalborg Portland and Others v Commission, paragraph 45 above, paragraph 67), to enable those concerned to be aware of the conduct in which the Commission alleges they have been engaged and to put forward their defence before the Commission adopts a final decision. That statement of objections constitutes the procedural safeguard applying the fundamental principle of Community law which requires observance of the rights of the defence in all proceedings (Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 35).

136 That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see Papierfabrik August Koehler and Others v Commission, paragraph 135 above, paragraph 36 and the case-law cited).

137 In particular, the statement of objections must specify unequivocally the legal person on whom fines may be imposed, it must be addressed to that person and it must indicate in what capacity that person is called upon to answer the allegations (see, to that effect, Papierfabrik August Koehler and Others v Commission, paragraph 135 above, paragraphs 37 and 38).

138 It is by the statement of objections that the undertaking concerned is informed of all the essential elements on which the Commission is relying at that stage of the procedure. Consequently, it is only after notification of the statement of objections that the undertaking is able to rely in full on its rights of defence (see Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 59 and the case‑law cited, and AC‑Treuhand v Commission, paragraph 126 above, paragraph 48).

139 As regards the applicant’s first compla