Judgment of the General Court (Fourth Chamber) of 13 September 2013 —

Total v Commission

(Case T‑548/08)

‛Competition — Agreements, decisions and concerted practices — Paraffin waxes market — Slack wax market — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Rights of the defence — Principle of the legality of criminal offences and penalties — Presumption of innocence — Attributability of the unlawful conduct — Liability of a parent company for infringements of the competition rules committed by its subsidiaries — Decisive influence exercised by the parent company — Presumption where the parent company holds nearly 100% of the shares’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Elements capable of rebutting that presumption — Subsidiary held by a holding company — Not sufficient to rebut the presumption (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 26-32, 35-37, 40-45, 61, 71, 72, 77, 83, 85, 92, 98, 152)

2. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 27(1)) (see paras 104-106, 110, 132-134)

3. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability — Scope (Art. 6(1) TEU; Arts 101 TFEU and 102 TFEU; Charter of Fundamental Rights of the European Union, Art. 48(1)) (see paras 121-123, 139, 140)

4. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — No infringement of principles that a party is to be liable only for its own acts and that penalties must have a sound legal basis — No infringement of the principle of sound administration (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 155, 156, 159-162, 168-170)

5. Actions for annulment — Pleas in law — Misuse of powers — Concept (Arts 101 TFEU, 263 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 175-177)

6. Competition — Administrative procedure — Powers of the Commission — Cumulation of powers of inquiry, prosecution and imposing penalties — Plea of illegality — No incompatibility with the principles of a fair process (Art. 6(1) TEU; Arts 101 TFEU and 102 TFEU; Charter of Fundamental Rights of the European Union, Art. 41; Council Regulation No 1/2003) (see paras 182-187)

7. Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Effect (Art. 261 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Arts 23(3), and 31) (see paras 188-190)

8. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 199-203)

Re:

Primarily, application for annulment of Commission Decision C(2008) 5476 final of 1 October 2008, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle waxes), and, in the alternative, application for annulment or reduction of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;