JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

7 June 2011 ( )

(Competition – Agreements, decisions and concerted practices – Market for methacrylates – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Imputability of the unlawful conduct – Duty to state reasons – Principle of equal treatment – Principle of sound administration – Fines – Gravity of the infringement – Actual impact on the market – Deterrent effect of the fine – Repeat infringement – Ne bis in idem principle – Principle of proportionality – Mitigating circumstances – Non-implementation in practice of the agreements – Attribution of liability for payment within a group of companies – Unlimited jurisdiction)

In Case T‑217/06,

Arkema France, established in Colombes (France),

Altuglas International SA, established in Puteaux (France),

Altumax Europe SAS, established in Puteaux,

represented initially by A. Winckler, S. Sorinas Jimeno and P. Geffriaud, and subsequently by S. Sorinas Jimeno and E. Jégou, lawyers,

applicants,

v

European Commission, represented initially by F. Arbault and V. Bottka, and subsequently by V. Bottka and F. Castillo de la Torre, acting as Agents,

defendant,

APPLICATION for, principally, annulment of Commission Decision C (2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates), in so far as it concerns the applicants, and, in the alternative, application for annulment or reduction of the fine imposed on the applicants by that decision,

THE GENERAL COURT (Fourth Chamber),

composed of O. Czúcz, President, I. Labucka (Rapporteur) and K. O’Higgins, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 15 December 2009,

gives the following

Judgment

Background to the dispute

Introduction

1 By Commission Decision C (2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) (‘the contested decision’), the Commission of the European Communities imposed a fine of EUR 219 131 250 jointly and severally on Arkema SA and its subsidiaries Altuglas International SA (‘Altuglas’) and Altumax Europe SAS (‘Altumax’) (taken together, called ‘Arkema’) for having participated in a cartel in the methacrylates sector from 23 January 1997 to 12 September 2002 (‘the cartel at issue’). Their parent companies, Total SA and Elf Aquitaine SA, were held jointly and severally liable for payment of the fine in the sum of EUR 140.4 million and EUR 181.35 million respectively (Article 2 to the contested decision).

2 Arkema (formerly Atofina SA) is a limited company incorporated under French law having three main activities: vinyl products, industrial chemistry and performance products. At the time of the events referred to in the contested decision, Arkema was owned by Elf Aquitaine, first with a 97.6% shareholding, then, after the takeover of the Elf group by Total Fina SA, on 17 April 2000, with a 96.48% shareholding. From that date and during the remainder of the period of infringement concerned, Elf Aquitaine was itself 99.43% owned by Total (formerly Total Fina and subsequently TotalFinaElf SA) (recitals 265 and 266 to the contested decision).

3 Arkema became Arkema France on 18 May 2006, when it was introduced on the stock exchange.

4 Altuglas (formerly Atohaas and Atoglas SA) and Altumax are the main subsidiaries of Arkema active in the sector of methacrylates and, in particular, of methyl polymethacrylate (‘PMMA’) which participated in the collusive behaviour described in the contested decision (recital 259 to the contested decision). Altumax was wholly owned by Arkema throughout the duration of the infringement. Altuglas has been wholly owned by Arkema since 1998. Before that date, Elf Atochem SA held only 50% of its capital, but was responsible for its day-to-day management (recital 263 to the contested decision).

Administrative procedure

5 The investigation leading to the adoption of the contested decision was initiated following the submission by Degussa AG on 20 December 2002 of a request 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 Leniency Notice’).

6 On 25 and 26 March 2003, the Commission carried out inspections, in particular at the premises of Arkema. After those inspections, Arkema submitted, on 3 April 2003, an application for immunity or a reduction in the amount of the fine under the Leniency Notice (recital 60 to the contested decision).

7 On 17 August 2005, the Commission adopted a statement of objections concerning an infringement in the methacrylates industry addressed to, among others, Total, Elf Aquitaine, Arkema, Altuglas and Altumax (recital 85 to the contested decision).

8 A hearing was held on 15 and 16 December 2005 and was attended by all the addressees of the statement of objections (recital 87 to the contested decision).

9 On 31 May 2006, the Commission adopted the contested decision.

The contested decision

10 Two aspects of the contested decision are particularly relevant for the purposes of these proceedings: the identification of its addressees and the calculation of the fine.

Addressees of the contested decision

11 The Commission, after stating that it was necessary to determine to which legal entities responsibility for the infringement should be imputed (recital 245 to the contested decision), considered that Altuglas, Altumax, Arkema and Elf Aquitaine were jointly and severally liable for the infringement committed by Altuglas and Altumax during the period from 23 January 1997 until 12 September 2002. Total is held jointly and severally liable for the infringement committed by Altuglas and Altumax from 1 May 2000 until 12 September 2002 (recital 277 to the contested decision).

12 More specifically, as regards the liability of Elf Aquitaine, the Commission, taking into account the fact that the members of Arkema’s board of directors were appointed by Elf Aquitaine and that Elf Aquitaine had a 97.6% shareholding in its subsidiary’s capital and, after April 2000, a 96.48% shareholding, presumed that Elf Aquitaine exercised decisive influence and effective control over the conduct of Arkema (recital 265 to the contested decision).

13 As regards Total’s liability, the Commission found that, from April 2000 until the end of the infringement, that company had controlled directly or indirectly the capital of all operating companies of the group, including those that had fulfilled a direct role in the cartel at issue. Given these facts, the Commission presumed that Total exercised decisive influence over the conduct of its subsidiaries Elf Aquitaine, Arkema, Altuglas and Altumax and sent a statement of objections to all these entities (recital 267 to the contested decision).

14 Responses to the statement of objections were sent separately by Arkema, on the one hand, and by Total and Elf Aquitaine, on the other, claiming inter alia that the decision should be addressed solely to Arkema (recitals 268 and 269 to the contested decision). The Commission rejected their arguments and confirmed its view that the five entities referred to in the previous paragraph were liable (recitals 270 to 277 to the contested decision). Hereinafter, reference will be made to all those entities as forming the ‘Total group’.

Calculation of the fine

15 As regards the calculation of the fine, the Commission, in the first place, examined the gravity of the infringement and found, first of all, that, in view of the nature of the infringement and the fact that it had covered the entire territory of the EEA, the infringement in question was a very serious infringement within the meaning of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3) (‘the Guidelines’) (recitals 319 to 331 to the contested decision). Next, the Commission applied differential treatment to the undertakings participating in the infringement and placed the Total group, by reason of Arkema’s turnover in the EEA for the three PMMA products, in the first category. On that basis, it applied a starting amount of EUR 65 million (recitals 332 to 336 to the contested decision). Finally, taking into account Total’s worldwide turnover, the Commission applied a multiplication factor of 3 to the fine imposed on the Total group in order to ensure that the fine had a deterrent effect. Accordingly, the starting amount of the fine is EUR 195 million (recitals 337 to 350 to the contested decision).

16 In the second place, the Commission examined the duration of the infringement and found that, since Arkema had participated in the infringement for five years and seven months, the starting amount should be increased by 55%. That increase was applied to Elf Aquitaine, Arkema, Altuglas and Altumax. As regards Total, which owned the capital of its subsidiaries during a shorter period, the Commission increased the fine by 20% (recitals 351 to 353 to the contested decision). Accordingly, the basic amount of the fine calculated for Arkema (including Elf Aquitaine) is EUR 302.25 million. Total is held jointly and severally liable for the payment of EUR 234 million of this amount (recital 354 to the contested decision).

17 In the third place, the Commission examined whether there were any aggravating circumstances. As regards Arkema, the Commission found, in the light of the fact that it had been the addressee of three previous decisions, that it had committed a repeated infringement of the same type and decided to increase the basic amount of the fine for Arkema by 50%. The Commission stated, however, that Total and Elf Aquitaine were not recidivists and that, therefore, that increase applied only to Arkema, Altuglas and Altumax (recital 369 to the contested decision and corresponding footnote 250).

18 In the fourth place, the Commission rejected the mitigating circumstances put forward by the Total group.

19 At that stage, as a result of the aggravating or mitigating circumstances taken into account, the amount of the fine was EUR 365 218 750 for Arkema, Altuglas and Altumax. For Total, the amount of the fine remained fixed at EUR 234 million. For Elf Aquitaine, the amount of the fine remained at EUR 302.25 million (recital 397 to the contested decision). In accordance with Article 23(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), the Commission considered that the fine did not exceed 10% of the turnover of the undertaking concerned (recitals 398 and 399 to the contested decision).

20 In the fifth and last place, the Commission applied the Leniency Notice and decided, in application of the first indent of point 23(b) of that notice, to reduce by 40% the fine that would otherwise have been imposed on the Total group (recitals 403 to 410 to the contested decision).

21 Accordingly, in Article 2(b) of the contested decision, the Commission set the final amount of the fine as follows:

‘Arkema ..., Altuglas ... and Altumax ..., jointly and severally liable: EUR 219.13125 million; of this amount Total ... is jointly and severally liable for EUR 140.4 million and Elf Aquitaine SA is jointly and severally liable for EUR 181.35 million.’

Procedure and forms of order sought

22 By application lodged at the Court Registry on 10 August 2006, the applicants, Arkema France, Altuglas and Altumax, brought the present action.

23 Owing to a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Fourth Chamber, to which, in consequence, the present case was assigned.

24 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, requested the parties to produce certain documents and requested the Commission to produce a document. The parties complied with those requests within the prescribed period.

25 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 15 December 2009. At the end of the hearing, the oral procedure was closed.

26 By order of 26 November 2010, the Court decided to reopen the oral procedure in accordance with Article 62 of its Rules of Procedure in order, by way of measures of organisation of procedure, to request the parties to produce documents and reply to questions. The parties complied with those requests within the periods prescribed. The oral procedure was then closed on 9 March 2011.

27 The applicants claim that the Court should:

– principally, annul the contested decision in so far as it applies to the applicants;

– in the alternative, annul or reduce the fine imposed on them by the contested decision;

– order the Commission to pay the costs.

28 The Commission contends that the Court should:

– dismiss the application;

– order the applicants to pay the costs.

Law

29 In support of their action, the applicants put forward, in essence, eight pleas in law. The first plea alleges infringement of the rules relating to holding a parent company liable for practices committed by its subsidiary and of the principle of non-discrimination. The second plea alleges that the Commission made errors of fact in holding Total and Elf Aquitaine liable for the infringement committed by Arkema. The third plea alleges infringement of the duty to state reasons and of the principle of sound administration in the implementation of the rules of imputability. The fourth plea alleges that the Commission failed to apply the criterion of the actual impact on the market in fixing the starting amount of the fine at EUR 65 million. The fifth plea alleges the existence of errors of law and fact in the increase in the starting amount of the fine to ensure it had a deterrent effect. The sixth plea alleges that the Commission committed errors of law by increasing the fine for repeated infringement. The seventh plea alleges that the Commission made an error of fact in that it did not grant the applicants a reduction in the fine on account of the fact that certain offending practices were not actually implemented by Arkema. The eighth plea alleges errors of law and fact constituted by the Commission’s refusal to grant the applicants a reduction in the fine under ‘other factors’. Furthermore, at the hearing, the applicants put forward an additional plea, contesting the increase in the fine in order to ensure that it had a sufficiently deterrent effect.

The first plea, alleging infringement of the rules relating to holding a parent company liable for practices committed by its subsidiary and of the principle of non-discrimination

30 The applicants claim that, by relying on the presumption that a parent company actually exercises a decisive influence over a subsidiary if it holds all or almost all its capital (‘the presumption of exercise of a decisive influence’), and without adducing evidence of actual control, the Commission committed an error of law (first part of this plea). By so doing, it also infringed the principle of non-discrimination, by applying to Arkema a different standard of proof from that applied to other subsidiaries which participated in the alleged practices (second part of this plea).

The first part, alleging infringement of the rules relating to holding a parent company liable for practices committed by its subsidiary

– Arguments of the parties

31 The applicants maintain that, according to settled case-law and the Commission’s practice in taking decisions, where the undertaking which is the perpetrator of the infringement belongs to a group of companies, only the subsidiary in question is, as a general rule, liable for the infringement committed. Only in certain circumstances may the acts of a subsidiary be attributed to the parent company. That would be the case either where the parent company actually exercises a decisive influence over the conduct of its subsidiary, since the latter cannot determine its commercial policy independently, or where the parent company has been involved (actively or passively, simply by being aware of the facts) in the infringement committed by the subsidiary.

32 The applicants claim that, under the applicable case-law, holding 100% of the capital (and, a fortiori, 99.43%, 97.6% or 96.48%) does not, on its own, lead automatically to the conclusion that the parent company actually exercises a decisive influence over the commercial policy of its subsidiary. According to the applicants, the case-law has always required additional evidence in that regard, such as the fact that parent company presented itself during the administrative procedure as being the Commission’s only interlocutor for the group, the fact that the existence of an actual power of control over the subsidiary was not contested and the lack of any evidence of the subsidiary’s independence.

33 However, in the present case, apart from the fact that almost all Arkema’s capital was held directly or indirectly by its parent companies at the time, the Commission provided no evidence in the contested decision to show that Total and/or Elf Aquitaine actually exercised, during the period under consideration, a decisive influence over Arkema’s commercial policy or in the implementation of the alleged practices. In particular, according to the applicants, the fact, pointed out by the Commission in the contested decision, that the members of Arkema’s board of directors were appointed by Elf Aquitaine at the time the events occurred is merely the logical reflection of the fact that Elf Aquitaine held the majority shareholding in Arkema and did not prove that it exercised a decisive influence over the company.

34 The applicants therefore consider that, by relying, in order to attribute the practices referred to in the contested decision to Total and Elf Aquitaine, on the presumption of exercise of a decisive influence, solely on the basis of the fact that they held, directly or indirectly, almost all Arkema’s capital, the Commission committed an error of law, which justifies annulling the contested decision.

35 Finally, when questioned by the Court about the consequences for the present case of the judgment in Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, the applicants stated, at the hearing, that the facts in that case, and especially the control exercised by the parent company over its subsidiaries which had participated in the infringement, were different from those in the present case. Moreover, the applicants pointed out that, in that case, the level of participation of the parent company in the capital of its subsidiary was 100%, whereas, in the present case, that level is not reached (99.43%, 97.6% and 96.48%). In any event, the applicants state that, if the judgment in Akzo Nobel and Others v Commission was to be interpreted as allowing an infringement committed by a subsidiary to be attributed to its parent company without any additional evidence other than the shareholding link, that case-law should be re-examined, since it created a strict liability regime which is incompatible with Regulation No 1/2003.

36 The Commission states that it shares the applicants’ view that only in certain circumstances may liability for an infringement committed by a subsidiary be attributed to the parent company. That possibility exists where the parent company actually exercises a decisive influence over the conduct of its subsidiary. However, according to the Commission, it is apparent from settled case-law that it is justified in concluding that a company which holds all or almost all the capital of its subsidiary actually exercises a decisive influence over its subsidiary, if the parent company has not rebutted the presumption of exercise of a decisive influence by adducing evidence that its subsidiary acts independently.

– Findings of the Court

37 It should be pointed out that it is apparent from recitals 245 to 252 and 259 to 277 to the contested decision that the Commission attributed the infringement at issue to Total and Elf Aquitaine on the ground that they constituted a single undertaking with Arkema and its subsidiaries Altuglas and Altumax, which had participated in the collusive conduct. In order to reach that conclusion, the Commission relied on the presumption, mentioned in the statement of objections, that Total and Elf Aquitaine exercised a decisive influence over the conduct of their subsidiaries. As regards Elf Aquitaine, the presumption of exercise of a decisive influence was based on the fact that the members of Arkema’s board of directors were appointed by Elf Aquitaine and on the fact that Elf Aquitaine had a 97.6%, and then a 96.48% shareholding in the capital of Arkema (recital 265 to the contested decision). As regards Total, that presumption was based on the fact that, since April 2000, Total directly or indirectly controlled the capital of all the companies in the group, including the companies which had played a direct role in the cartel at issue, on account of its 99.43% shareholding in the capital of Elf Aquitaine (recitals 266 and 267 to the contested decision). It is apparent from the contested decision that, in their reply to the statement of objections, the companies concerned put forward a number of arguments designed to rebut the presumption of exercise of a decisive influence but that the Commission considered them to be inadequate (see inter alia recitals 272 and 274).

38 Next, it is necessary to note the case-law of the Court of Justice in this context.

39 In that regard, it should be pointed out that European Union competition law refers to the activities of undertakings and the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see Akzo Nobel and Others v Commission, paragraph 35 above, paragraph 54 and the case-law cited).

40 The Court 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 35 above, paragraph 55 and the case-law cited).

41 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 35 above, paragraph 56 and the case-law cited).

42 The infringement of European Union 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 35 above, paragraph 57 and the case-law cited).

43 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 35 above, paragraph 58 and the case-law cited).

44 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 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 35 above, paragraph 59).

45 The Court has also held that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 35 above, paragraph 60 and the case-law cited).

46 The Court therefore held that, in those circumstances, it was sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company 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 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 35 above, paragraph 61 and the case-law cited).

47 In the light of that case-law of the Court, it must be stated that the method followed by the Commission in the present case in order to attribute the infringement at issue to the applicants’ parent companies, referred to in paragraph 37 above, is correct.

48 First, contrary to what the applicants appear to suggest, that imputation is not based solely on the structure of the shareholding, but also on the finding that the presumption of exercise of a decisive influence had not been rebutted (see inter alia recitals 272 and 274 to the contested decision).

49 Second, it is apparent from that case-law (see inter alia paragraphs 45 and 46 above) that the shareholding structure of a subsidiary constitutes an adequate criterion for raising that presumption, without the Commission having to adduce additional indicia relating to the actual exercise of influence by the parent company, as the applicants claim.

50 This conclusion is not affected by the applicants’ arguments that the facts in Akzo Nobel and Others v Commission, paragraph 35 above, and especially the control exercised by the parent company concerned in that case over its subsidiaries, were different from those of the present case. In particular, notwithstanding the fact that such additional indicia may have been established in that case (Case T-112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraphs 13 and 54), it is apparent without any ambiguity both from Case T-112/05 Akzo Nobel and Others v Commission, paragraphs 61 and 62, and from Akzo Nobel and Others v Commission, paragraph 35 above, paragraphs 61 and 62, that the implementation of that presumption is not conditional on the existence of such additional indicia.

51 It should also be noted that the aforementioned case-law concerns specifically the ‘specific case where a parent company has a 100% shareholding in a subsidiary’ (Akzo Nobel and Others v Commission, paragraph 35 above, paragraph 60). However, in the present case, Total and Elf Aquitaine do not hold all the capital of their respective subsidiaries.

52 However, it should be noted that the applicants, while referring to that factual difference at the hearing (see paragraph 35 above), did not put forward any specific argument against the application of the same evidential regime in both situations, even though the problem area of the application of the presumption of exercise of a decisive influence to cases other than that in which the parent company holds the whole of the capital of its subsidiary was the subject of a written question from the Court to the Commission and, subsequently of a discussion at the hearing.

53 In any event, it must be stated that a parent company which holds almost all the capital of its subsidiary is, as a general rule, in a similar situation to that of a sole owner, as regards its power to exercise a decisive influence over the conduct of its subsidiary, having regard to the economic, organisational and legal links which join it to that subsidiary. Consequently, the Commission is entitled to apply to that situation the same evidential regime, namely to rely on the presumption that that parent company makes effective use of its power to exercise a decisive influence over the conduct of its subsidiary. Admittedly, it is possible that, in certain cases, minority shareholders may have, in respect of the subsidiary, rights which call the aforementioned analogy in question. However, apart from the fact that such rights are not usually attached to quite minor shareholdings, such as those at issue in the present case, no evidence of that nature was produced by the applicants in the present case. The Commission was therefore entitled to apply the presumption of exercise of a decisive influence in respect of the applicants’ parent companies.

54 Finally, with regard to the argument that, in essence, the case-law established in Akzo Nobel and Others v Commission, paragraph 35 above, should be re‑examined, the General Court considers that, in the circumstances of the present case, it is not for the General Court to review a point of law which has been clearly settled by the Court of Justice in a recent judgment.

55 Accordingly, the first part of this plea must be rejected.

The second part, alleging infringement of the principle of non‑discrimination

– Arguments of the parties

56 The applicants’ claim that, whereas in their case the Commission relied exclusively on the presumption of exercise of a decisive influence for the purpose of attributing the infringement to the parent company, for most of the other subsidiaries which were addressees of the contested decision, it took the additional indicia into account. The applicants refer, in that regard, to the treatment reserved by the Commission, in the contested decision, for Degussa, ICI plc and Lucite International Ltd.

57 By so doing, the Commission discriminated unjustifiably when taking evidence. The applicants submit that, if the Commission had applied to Arkema the same standard of proof as to the other undertakings, it would have been bound to reach the conclusion that the infringement was attributable to Arkema alone.

58 Moreover, as regards the Commission’s argument that the contested decision mentions the appointment of members of Atofina’s board of directors by Elf Aquitaine, the applicants submit that that is merely the logical expression of the fact that Elf Aquitaine is the majority shareholder of Arkema and maintains that that factor is out of keeping with the indicia accepted by the Commission in respect of Degussa, for which the Commission took into account the fact that the parent company had actively participated in the infringement. In any event, the applicants claim that that evidence applies only to Elf Aquitaine, not to Total.

59 The Commission disputes those arguments

– Findings of the Court

60 It should be pointed out that the principle of equal treatment or non-discrimination 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 (see Case 227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 63 and the case-law cited).

61 Clearly, the applicants do not establish that the Commission infringed that principle by attributing the infringement at issue to the addressees of the contested decision.

62 First of all, it must be noted that the situation of ICI Acrylics is not comparable to that of the applicants. Indeed, it is clear from the contested decision that ICI Acrylics – the entity which participated directly in the infringement at issue – was merely a commercial section of ICI, without legal personality, and not a wholly‑owned or almost wholly-owned subsidiary of ICI (see inter alia recitals 280, 287 and 288). Consequently, as regards ICI, the Commission did not apply the presumption of exercise of a decisive influence (whether or not supported by other evidence), but merely identified the legal person of which, at the time of the events, the commercial section which had committed the infringement formed part (recitals 288 and 289 to the contested decision).

63 Next, with regard to Degussa, it should be pointed out that, in recital 255 to the contested decision, the Commission stated as follows:

‘Röhm GmbH & Co. KG (a 100% subsidiary of Degussa) and Para-Chemie GmbH (a 100% subsidiary of Röhm) are independent legal entities. Due to the fact that both companies were directly or indirectly wholly owned by Degussa ... and that the supervisory board of Röhm is partly composed by members of the management of Degussa ..., the Commission holds Degussa liable for the infringing behaviour of Röhm ... and Para-Chemie ...’

64 With regard to Lucite International, the Commission stated, in recital 294 to the contested decision, the following:

‘Lucite International Ltd ... wholly owns Lucite International UK Ltd. Furthermore, the directors of Lucite International ... were also directors of Lucite International UK Ltd during the period of the infringement.’

65 Accordingly, it is true that, in order to attribute to Degussa and Lucite International the infringing behaviour of their respective subsidiaries, the Commission relied on the presumption of exercise of a decisive influence owing to the fact that the subsidiary was wholly owned by the parent company, while referring to additional evidence, namely, respectively, the presence on the subsidiary’s supervisory board of members of the parent company’s management and the fact that the members of the board of directors of the two companies were the same.

66 However, it does not follow that Degussa and Lucite International, and their subsidiaries, received different treatment from that of the applicants and their parent companies, constituting an infringement of the principle of equal treatment.

67 It should be pointed out that, just as the applicants’ parent companies, Degussa and Lucite International were also held liable for the infringing behaviour of their subsidiaries (recitals 258 and 296 to the contested decision). Nothing in the contested decision supports the conclusion that the Commission would have relieved them of that liability if it had been unable to find the aforementioned additional evidence.

68 In that regard, it should be pointed out that, in recitals 245 to 252 to the contested decision, the Commission set out the principles which guided it in identifying the addressees of the contested decision. It is clear that, where all or almost all the capital of a subsidiary was controlled, the Commission considered it was entitled to find that that subsidiary was not independent solely on the basis of the presumption of exercise of a decisive influence, provided that that presumption was not rebutted during the administrative procedure and, accordingly, to attribute its infringing behaviour to the parent company on the ground that the latter formed part of the same undertaking (see inter alia recitals 247 and 248 to the contested decision).

69 It must therefore be stated, as the Commission pointed out, that it was only for the sake of completeness that it drew attention to the existence of evidence other than the shareholding link, where such evidence was available. Moreover, as regards the Total group, the Commission also drew attention to the fact that the members of Arkema’s board of directors had been appointed by Elf Aquitaine. However, the Commission by no means made the attribution of a wholly-owned or almost wholly-owned subsidiary’s infringing conduct to its parent company subject to the existence of such additional evidence. This interpretation is confirmed, moreover, by the fact that, with regard to certain parent companies, the contested decision mentions only the shareholding link. That is the case of Total (recital 266) and companies in the Barlo group, namely Barlo Plastics Europe NV, Barlo Plastics NV and Barlo Group plc (recital 301).

70 Moreover, it should be pointed out that the method followed by the Commission in the present case in order to attribute the infringement at issue to the applicants’ parent companies is correct, as is apparent from the foregoing (see paragraph 47 above).

71 The second part of this plea must therefore be rejected and, consequently, the first plea in its entirety.

The second plea, alleging errors of fact committed by the Commission in attributing the infringement committed by Arkema to Total and Elf Aquitaine

72 The applicants maintain that, even if reliance on the presumption of exercise of a decisive influence over them is valid, the Commission was wrong in fact to attribute the infringement to Total and to Elf Aquitaine. They have demonstrated, first, that the directors of Elf Aquitaine and Total had no involvement in the practices in question and, secondly, that Arkema determined its commercial policy independently.

The first part, alleging that the Commission disregarded the fact that the directors of Total and Elf Aquitaine were not involved in the practices referred to in the contested decision

– Arguments of the parties

73 The applicants point out that the Commission does not claim, in the contested decision, that the directors of Elf Aquitaine or Total were involved, in any way whatsoever, in the practices in question or that they were aware of the infringements committed. They also point out that, during the investigation, the Commission addressed no request for information to those undertakings or carried out investigations on their premises.

74 In the applicants’ view, it is apparent from the Commission’s practice in taking decisions that the lack of active or passive participation of the parent company in the infringement may lead it to rule out attributing the infringement committed by the subsidiary to the parent company, even where the parent company holds most or all the capital of that subsidiary.

75 Furthermore, the applicants point out, in that regard, that the group to which they belonged at the time of the events insisted on strict observance of the competition rules, which indeed led Arkema to introduce a programme for compliance with competition law from January 2001, that is only a few months after the Elf group was taken over by Total Fina, on 17 April 2000. They therefore consider that if Total and/or Elf Aquitaine could have been aware of the anti-competitive practices implemented by Arkema, they would immediately have ordered them to cease.

76 Consequently, according to the applicants, the Commission could have relied on that evidence to consider that those companies, although they held almost all Arkema’s capital during the alleged period, were not liable for its infringing behaviour on the PMMA market.

77 The Commission disputes those arguments.

– Findings of the Court

78 It should be pointed out that it is apparent from recitals 245 to 252 and 259 to 277 to the contested decision that the Commission attributed the infringement at issue to Total and to Elf Aquitaine on the ground that they constituted, at the time of the events, a single economic entity and, therefore, an undertaking, within the meaning of competition law, with Arkema and its subsidiaries, Altuglas and Altumax, which had participated in the collusive conduct. In order to reach that conclusion, the Commission relied on the presumption of exercise of a decisive influence and found that this had not been rebutted during the administrative procedure. As is apparent from the examination of the first plea, it was fully entitled to use this method.

79 As is apparent from the case-law, the fact that a parent company and its subsidiary form a single undertaking for the purposes of Article 81 EC allows the Commission to address a decision imposing fines on the parent company, without having to establish the personal involvement of the latter in the infringement (Akzo Nobel and Others v Commission, paragraph 35 above, paragraph 50). Consequently, it was not necessary for the Commission to establish the direct involvement of the directors of the parent company or even their awareness of the alleged facts. Similarly, the conduct of the Commission during the administrative procedure, and in particular the fact that it did not address any request for information to the parent companies or carry out investigations on their premises, has no bearing on the question of whether they, together with their subsidiaries, form one undertaking within the meaning of Article 81 EC.

80 As for the Commission’s practice in taking decisions, to which the applicants refer, it should be stated that, even if the Commission made the attribution of the infringement to the parent company subject to the direct involvement of its directors in the infringement, that has no bearing on the legality of the contested decision in that regard, since the method used in the present case was correct. Moreover, in their reply, the applicants state that they do not claim that the lack of participation of a parent company in the infringement committed by its subsidiary is enough on its own to exclude the parent company’s liability, but that it is merely evidence which the Commission may take into account for that purpose.

81 Finally, as the Commission rightly maintains, the lack of direct involvement of the directors of the parent company or their ignorance of the alleged facts, even if they may be established, is not enough to rebut the presumption of exercise of a decisive influence.

82 Accordingly, the first part of this plea must be rejected.

The second part, alleging failure to take account of the evidence establishing that Arkema did indeed determine its commercial policy independently

– Arguments of the parties

83 The applicant’s claim that Arkema established, during the administrative procedure, that its commercial policy had never been defined by Elf Aquitaine or by Total during the period covered by the contested decision. Accordingly, the fact that it was legally a subsidiary of Elf Aquitaine at the time of the events and that the members of its board of directors were appointed by Elf Aquitaine had no bearing on its independence when determining its commercial policy. Consequently, by attributing the infringement implemented by Arkema to its parent companies at the time, the Commission committed an error of fact.

84 In the first place, the applicants submit that the fact that neither Total nor Elf Aquitaine define the commercial policy of their subsidiaries is apparent from the very structure of the group. Those undertakings are in fact holding companies, shareholders of several groups of companies acting independently in their respective areas of activity.

85 In the second place, the applicants claim that Arkema showed that it was wholly independent in determining its commercial policy relating to PMMA, and in particular with regard to its pricing and customer selection policy. They state that it was Arkema which was the parent company of the chemicals division and that it was Arkema which actually gave instructions to its own subsidiaries, such as Altuglas and Altumax. Above Arkema, the relationship was only that which normally prevails between the shareholder anxious to preserve its financial interests and an independent management, responsible for managing the chemicals activity. Accordingly, the role of Total and Elf Aquitaine was limited to authorising large investments and to receiving accounting and financial information concerning the results of their subsidiary, as required by the applicable legislation. In that regard, the applicants refer to the internal memo entitled ‘Internal powers and expenditure commitments’, annexed to the application.

86 In that regard, the applicants distinguish between two periods: from 1992 to 2000 and from 2001 to 2004.

87 As regards the period from 1992 to 2000, they state that the commercial policy concerning the PMMA activities was defined independently by Elf Atochem, through the ‘Organic synthesis intermediaries’ division (‘DIOS’). The broad outlines of that commercial policy, in the form of a five-year business plan, were approved each year in advance by the general management committee of Elf Atochem, which also validated the budget of the DIOS.

88 As regards the period from 2001 to 2004, the commercial policy concerning the PMMA activities was defined independently by Arkema, through Atoglas (now Altuglas). The broad outlines of that commercial policy, in the form of a five-year business plan, were approved each year in advance by the chemicals management committee, the executive body of the chemicals division. The budget for the PMMA activities was presented to Total’s executive committee, as part of Atoglas’ overall budget. That executive committee intervened in respect of investments, for decisions concerning an amount of more than EUR 10 million, and assessed the risk and profitability levels of those investments.

89 The applicants state, in particular, that neither Total nor Elf Aquitaine determined Arkema’s commercial policy for activities such as those in the present case, which represented only a marginal part of their turnover. They point out, in that regard, that, in 2002 (the last year of the infringement), Arkema’s worldwide turnover for the sale of PMMA was EUR 416 million, which represented 2.1% of the overall turnover of the chemicals division and 0.4% of the overall turnover of the Elf Aquitaine/Total group.

90 Moreover, the applicants state that, even if the presumption of exercise of a decisive influence is valid, the burden of proof on the undertaking concerned ought, in order to allow it to rebut such a presumption, to relate to showing lack of actual control of the parent company over the subsidiary’s commercial policy on the market concerned and, therefore, in the present case, on the PMMA market. In their view, a different approach, consisting in requiring proof of full independence from the parent company, and therefore the rebuttal of the abstract possibility of the parent company exercising a decisive influence over its subsidiary, where it holds 100% of the capital, comes under probatio diabolica and is tantamount to introducing an irrebuttable presumption.

91 In the third place, the applicants submit that the overall control exercised by Total and Elf Aquitaine over Arkema contrasts with the control exercised by Arkema over its subsidiaries Altuglas and Altumax, which were integrated within Arkema, at both operational and functional level. The applicants also state that Arkema intervened throughout the proceedings on its own behalf and on that of its subsidiaries and never denied, during the investigation, the existence of actual control over its subsidiaries.

92 Accordingly, first, at the operational level, unlike Elf Aquitaine and Total, which did not take part in the methacrylates production process, Arkema was active in the production of methyl methacrylate, a raw material used – in part – in a captive manner by its subsidiaries Altuglas and Altumax for the production and distribution of PMMA.

93 Secondly, at the functional level, although exercised by subsidiaries of Arkema (Altuglas and Altumax), the PMMA activity was always part of Arkema’s commercial organisation, first of all within the DIOS until 2000, and then through a commercial unit specifically dedicated to PMMA, from 2001. Moreover, during the period concerned, the majority of the members of Altuglas’ board of directors were representatives of Arkema’s legal and financial departments. The latter had, in addition, responsibilities not only within Arkema, but also within Altuglas, which did not have its own legal and financial departments. Finally, the employees of Altuglas involved in the practices covered by the contested decision all regularly reported to a member of Arkema’s management, who was, during the period of the infringement, Mr G., who was successively director of the DIOS until 2000 and a member of the chemicals management committee from 2001.

94 The applicants point out, moreover, that this functional and operational integration between Arkema and its subsidiaries Altuglas and Altumax was confirmed in 2004, at the time of the reorganisation of the Total group’s chemicals division and of the creation of Arkema, then, in May 2006, with the introduction of Arkema on the stock exchange.

95 In the fourth place, the applicants state that none of the documents collected during the proceedings shows that Arkema received, directly or indirectly, any instructions or recommendation from Elf Aquitaine or Total concerning the commercial policy to be followed on the methacrylates markets, even though hundreds of documents had been seized by the Commission at Arkema’s offices.

96 In the fifth place, the applicants point out that the position adopted by the Commission in the contested decision is contrary to its own previous practice. In Commission Decision C (2003) 4570 final of 10 December 2003 relating to a procedure under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides) (‘the Organic peroxides decision’), the Commission did not attribute liability for the infringement committed by Arkema to Elf Aquitaine, in spite of the shareholding link which existed between those two undertakings. By so doing, the Commission accepted that Arkema enjoyed genuine independence when determining its commercial policy. In the applicants’ opinion, since the period covered by the Organic peroxides decision coincides in part with that covered by the contested decision and since the economic and financial relations between Arkema and Elf Aquitaine were strictly identical in the two cases, the Commission was not justified in departing from the position taken in the case which gave rise to the Organic peroxides decision.

97 Moreover, the limited overall control exercised by Total and Elf Aquitaine over their subsidiaries has recently been confirmed by the French Conseil de la concurrence, which found, in a decision relating to the distribution of fuel on motorways, that Total Raffinage Distribution SA and Elf Antar France SA were sufficiently independent in the determination of their commercial policy.

98 Finally, the applicants claim that the Commission committed errors of law in the assessment of the nature and division of the burden of proof. They consider that, since the presumption of exercise of a decisive influence relied on by the Commission was not accompanied by any additional evidence establishing actual control by the parent companies over Arkema’s commercial policy in relation to the PMMA market, the mere fact that Arkema, during the administrative procedure, adduced evidence to establish its genuine independence on the market was sufficient to reverse the burden of proof. They submit that it was therefore for the Commission to show that, in spite of that evidence, Total and Elf Aquitaine exercised a decisive influence over their subsidiaries, in respect of the market concerned.

99 The Commission claims that the evidence produced by the applicants during the administrative procedure, and repeated in the application, is not adequate, even when considered as a whole, to establish that Arkema acted independently of Elf Aquitaine on the market and, therefore, to rebut the presumption of exercise of a decisive influence.

– Findings of the Court

100 First of all, it should be pointed out that, contrary to what the applicants claim (see paragraphs 90 and 98 above), the Commission did not disregard, in the present case, the rules concerning the burden of proof.

101 In that regard, it should be noted that it is apparent from Akzo Nobel and Others v Commission, paragraph 35 above, paragraph 61 that, in order to rebut the presumption of exercise of a decisive influence, the onus is on the company concerned to adduce ‘sufficient evidence’ to show that the subsidiary acts independently on the market. As for the Commission, it has the responsibility of examining that evidence, not of producing positive evidence to establish the exercise of such an influence. Moreover, if it were enough for the interested party to contest that presumption merely by making unsubstantiated assertions, the presumption would be deprived of all its effectiveness.

102 It should be noted at the outset that, in their reply to the statement of objections, the applicants produced very little hard evidence in support of their claims regarding Arkema’s independence on the market. In particular, Part III. 2 of that reply, entitled ‘Arkema enjoyed [during the period of the infringement] actual independence in the determination of its commercial policy’, does not refer to any document in support of the statements it contains. It therefore appears that the Commission’s finding, in recital 272 to the contested decision, that the evidence presented by the applicants constituted merely assertions which are not supported by sufficient evidence is correct. As is apparent from the previous paragraph, it rightly permits the conclusion that the presumption of exercise of a decisive influence was not rebutted.

103 Moreover, contrary to what the applicants maintain, the approach taken in the contested decision does not fall within the scope of probatio diabolica. It is apparent from the case-law that, in order to assess whether a subsidiary decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company, which may vary from case to case and which cannot, therefore, be exhaustively listed (see, to that effect, Akzo Nobel and Others v Commission, paragraph 35 above, paragraphs 73 and 74). Consequently, it was for the applicants to adduce any proof relating to the economic, organisational and legal links between that subsidiary and the parent company and which in their view was apt to demonstrate that they did not constitute a single economic entity (see, to that effect, Akzo Nobel and Others v Commission, paragraph 50 above, paragraph 65). Even if the applicants were unable to produce such evidence in the present case, that does not mean that that presumption cannot in any case be rebutted.

104 The specific arguments put forward by the applicants must be examined in the context of these general observations.

105 In the first place, they rely on the fact that Total and Elf Aquitaine are holding companies and claim that the independence of their subsidiaries is the consequence of the very structure of the group.

106 It should be pointed out, first, that the statements that Total and Elf Aquitaine are holding companies are unsupported by evidence.

107 Secondly, even if those statements were true, they are insufficient to preclude the parent companies in question exercising a decisive influence on the subsidiaries by coordinating inter alia financial investments within the group. It has already been held that, in the context of a group of companies, a holding company is a company which seeks to regroup shareholdings in various companies and whose function is to ensure that they are run as one (Case T-69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II-2567, paragraph 63). In the present case, the applicants themselves state that their parent companies intervened in the more important decisions which could have an impact at group level. Far from invalidating the argument that there was an economic entity composed of the applicants and their parent companies, those statements rather confirm that the function of the parent companies was to ensure unity of management and coordination, such as to influence the conduct of the subsidiaries on the market.

108 In the second place, the applicants claim that they have established that Arkema was wholly independent when determining its commercial policy in relation to PMMA. Arkema was the parent company of the chemicals division and gave instructions to its own subsidiaries, such as Altuglas and Altumax. As for Total and Elf Aquitaine, their role was, they claim, limited to authorising large investments and to receiving accounting and financial information concerning the results of their subsidiary, as required by the applicable legislation.

109 In that regard, it should be pointed out, first, that the applicants’ statements are unsupported by evidence. However, as regards the statements relating to the organisation and structure of the Total group and to the respective powers of the different companies in the group, hard evidence could, in principle, be adduced.

110 Admittedly, the applicants produced, annexed to the application, an internal memo entitled ‘Internal powers and expenses commitments’, designed to support their argument that the parent company merely approved the larger investments made by Arkema. However, as the Commission states, without being contradicted by the applicants, that document was not included in the reply to the statement of objections. Moreover, when questioned in that regard at the hearing, the applicants confirmed that the document had not been produced during the administrative procedure. It is apparent from Akzo Nobel and Others v Commission, paragraph 35 above, paragraph 61, that, where it applies the presumption of exercise of a decisive influence, the Commission is able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the company concerned, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market. Accordingly, the Commission could reasonably conclude, in recital 272 to the contested decision, that the statements in question had not been supported by adequate evidence.

111 Secondly, and in any event, even if they were established, those claims are not sufficient to rebut the presumption of exercise of a decisive influence, since they relate exclusively to the determination of the commercial policy in respect of PMMA. Contrary to what the applicants maintain, in order to determine whether a subsidiary independently decides its conduct on the market, it is necessary to take into consideration not only the evidence relating to the commercial policy in the sphere of the cartelised products, but also all the relevant evidence relating to the economic, organisational and legal links between that subsidiary and the parent company (see, to that effect, Akzo Nobel and Others v Commission, paragraph 35 above, paragraphs 67, 68, 73 and 74, and Opinion of Advocate General Kokott in that case).

112 Moreover, some of the applicants’ statements indicate that they formed a single economic entity with their parent companies.

113 Accordingly, the applicants acknowledge that Total and Elf Aquitaine had to authorise the large investments made by their subsidiary. The exercise of such a power does indeed indicate that the subsidiary acts on the market taking into account the interests of the parent company (see, to that effect, judgment of 8 July 2008 in Case T-54/03 Lafarge v Commission, not published in the ECR, paragraph 547).

114 Similarly, the applicants refer, on several occasions, to the existence of a chemicals division of Total. In reply to a written question from the Court, the applicants confirmed that, from May 2000 until the end of the period of the infringement, the chemicals division included not only Arkema and its subsidiaries, but also other companies in the Total group. They explained that, following the merger between Total Fina and Elf Aquitaine, all the chemical activities were placed, from a functional point of view, under the aegis of Arkema (then Atofina). However, that functional regrouping was not automatically accompanied by a regrouping of shareholdings. That division of the group into divisions, which, furthermore, ignores the shareholding links between the companies in the group, is a strong indication that the coordination of the activities of those divisions was a matter for the parent company of the group. That function of the parent company precludes the independent action of the subsidiary on the market (see, to that effect, Lafarge v Commission, paragraph 113 above, paragraph 549, and Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 107 above, paragraph 64).

115 As for the assertions that the PMMA activity constituted only a very small part of the overall turnover of Total and Elf Aquitaine, they do not show that the parent company allowed the subsidiary full independence to define its conduct on the market. Moreover, as has been pointed out above, a subsidiary’s independence of its parent company must not be assessed solely in the light of its activity in the sphere of the cartelised products. Consequently, even if such an argument were relevant, it would be necessary to assess Arkema’s importance overall for its parent companies (see, to that effect, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 107 above, paragraph 66). However, the applicants have not presented arguments in that respect.

116 In the third place, it is necessary to reject the argument that the overall control exercised by Total and Elf Aquitaine over Arkema contrasts with the control exercised by Arkema over its subsidiaries Altuglas and Altumax. On the one hand, this is, again, an assertion which is unsupported by adequate evidence regarding the relations between the companies concerned. On the other hand, even if it were established that Total and Elf Aquitaine enjoyed less strict links with Arkema than Arkema with its own subsidiaries, that is not enough to establish that Arkema acted independently on the market.

117 In the fourth place, with regard to the argument that the reorganisation of the chemicals division of the Total group and the creation of Arkema in 2004, then its introduction on the stock market in 2006, confirmed that Arkema was independent, it need only be stated that this is evidence subsequent to the period of the infringement, which can therefore not attest to the independence of that company during that period. Furthermore, the expression ‘reorganisation of the chemicals division of the Total group’ suggests that Total assumed a coordinating role in respect of that chemicals division.

118 In the fifth place, with regard to the argument that no document in the file shows that Arkema received an instruction or recommendation from Elf Aquitaine or Total concerning the commercial policy on the methacrylates market, this on its own is irrelevant, since Arkema’s independence must not be assessed solely with regard to that market. Moreover, as has already been held, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary cannot prove that such instructions did not exist (see, to that effect, Lafarge v Commission, paragraph 113 above, paragraph 545).

119 In the sixth and last place, it is necessary to address the argument that the position adopted in the contested decision is contrary to the Commission’s previous practice, as evidenced by the Organic peroxides decision, in which it did not attribute the infringement committed by Arkema to Elf Aquitaine.

120 In that regard, it must be stated that it is apparent from the Organic peroxides decision (recitals 373 to 391), referred to by the applicants, that the Commission did not analyse therein the problem of the liability of Arkema’s parent company and, in particular, that it did not rule on the question of its independence of the parent company. Therefore, even if the facts in that case were similar to those of the present case, it cannot be maintained that that decision constituted any guarantee of the way in which the Commission perceived relations between Arkema and its parent companies, nor moreover of the criterion of imputability applicable to that group of companies.

121 Furthermore, the contested decision is not the first in which the Commission has attributed liability for the infringement committed by Arkema to Elf Aquitaine. In Commission Decision C (2004) 4876 of 19 January 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case C 37.773 – MCAA) (‘the MCAA decision’), the Commission had already attributed liability to Elf Aquitaine, also on the basis of the presumption of exercise of a decisive influence over its subsidiary, which was not rebutted.

122 In any event, it is apparent from the case-law that the Commission is not required to establish as a matter of course whether the infringing behaviour of a subsidiary may be attributed to its parent company (see, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraphs 330 and 331, confirmed by 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). Consequently, even if the applicants and Elf Aquitaine also formed a single undertaking at the time of the events alleged in the Organic peroxides decision, the mere fact that the Commission did not consider the possibility of addressing that decision to and imposing a penalty on the applicants’ parent company did not preclude it from doing so in the present case, in accordance with the rules set out by the case-law in respect of imputability.

123 Moreover, even if the Commission had been required to consider the imputation of the infringement at issue in the Organic peroxides decision to Elf Aquitaine, the fact that it did not do so is evidence only of an error committed in that case and cannot therefore usefully be invoked by the applicants in the present case.

124 In the light of the foregoing, it must be concluded that the evidence adduced by the applicants, even taken as a whole, is not sufficient to rebut the presumption that Total and Elf Aquitaine actually exercised a decisive influence over the conduct of their subsidiaries.

125 The second part of this plea must therefore be rejected in its entirety and, accordingly, the second plea in its entirety.

The third plea, alleging infringement of the duty to state reasons and of the principle of sound administration in the implementation of the imputability rules

126 This plea is divided into two parts.

The first part, alleging infringement of the duty to state reasons

– Arguments of the parties

127 The applicants claim that, since the contested decision does not contain a reply to all Arkema’s arguments designed to show the independence of its commercial policy, the Commission infringed its duty to state reasons. Moreover, the explanations given by the Commission in the defence do not remedy that situation.

128 First, the applicants state that the Commission did not respond to all the arguments put forward by Arkema, which are summarised in recital 269 to the contested decision. In particular, it failed to respond to the arguments that the appointment of the members of Arkema’s board of directors by Elf Aquitaine did not in itself prove actual exercise of control and that Arkema enjoyed full independence in the determination of its commercial policy, the reporting duty being limited to general information given within the framework of normal functioning in a group of companies, focused mainly on accounting, financing and auditing matters.

129 Secondly, the applicants state that the Commission did not respond to certain arguments presented by Arkema in its reply to the statement of objections, and they are not even summarised in the contested decision. They are arguments according to which the directors of Total and Elf Aquitaine were never involved in the alleged practices and the control exercised by the parent companies was limited to authorising the largest investments and was too general for Arkema’s independence to be restricted, inter alia as regards the fixing of prices.

130 The applicants consider that, although the Commission is not required to discuss all the points of fact and law addressed during the administrative procedure, it is nevertheless required to examine the validity of all the arguments put forward to rebut the presumption of exercise of a decisive influence, taken as a whole. Any other approach would amount to introducing an irrebuttable presumption.

131 Moreover, the failure to state reasons is all the more harmful in the present case because, first, the approach taken by the Commission is innovative, as the Commission recognises in recital 271 to the contested decision, and, secondly, with regard to the other subsidiaries implicated by the contested decision, the Commission found that there was additional evidence to support the presumption of exercise of a decisive influence by their parent companies. The applicants point out that, according to the case-law, the Commission’s duty to state reasons is more onerous if its decision goes appreciably further than the previous decisions (Case C-228/99 Silos [2001] ECR I‑8401, paragraph 28; and orders in Case T-245/03 FNSEA and Others v Commission [2004] ECR II‑271, paragraph 52, and Case T-217/03 FNCBV v Commission [2004] ECR II‑239, paragraph 66).

132 The Commission denies having infringed its duty to state reasons.

– Findings of the Court

133 So far as concerns the obligation on the Commission to provide reasons, it should be pointed out that it is settled case-law that 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. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

134 It has already been held that where, as in the present case, 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 (Case T‑327/94 SCA Holding v Commission [1998] ECR II-1373, paragraph 78, and Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraph 93). Consequently, in order to contain an adequate statement of reasons in regard to the applicants’ parent companies, the contested decision had to contain inter alia a detailed statement of reasons for attributing the infringement to those companies (see, to that effect, SCA Holding v Commission, paragraph 80).

135 Moreover, since that attribution has an impact on the applicants’ situation, they contested that attribution during the administrative procedure and they therefore have an interest in challenging the contested decision in that regard, they must be put in a position, just as their parent companies, to know the reasons for the Commission’s position.

136 It follows that, where, as in the present case, the Commission bases the attribution of the infringement on the presumption of exercise of a decisive influence and where the companies concerned have, during the administrative procedure, adduced evidence designed to rebut that presumption, the decision must contain an adequate statement of reasons justifying the view that the presumption cannot be rebutted on that evidence.

137 In the present case, in their reply to the statement of objections, the applicants maintained inter alia that, during the whole period of the infringement, Arkema had genuine independence in determining its commercial policy. In support of that statement, the applicants put forward, in essence, the same arguments as those analysed in connection with the second plea.

138 However, it is apparent from the foregoing that the Commission replied to those arguments in recital 272 to the contested decision, by stating that ‘[t]he other arguments [were] assertions which [were not] supported by evidence to a sufficient degree to rebut the presumption that Total and Elf Aquitaine [were] responsible for the acts of their subsidiary Atofina’. The applicants are therefore wrong to argue that the Commission did not reply to their argument, reproduced in recital 269(c) to the contested decision, that Arkema enjoyed complete autonomy in its commercial policy and conduct on the market.

139 Moreover, it must be considered that, in the circumstances of this case, that statement in recital 272 to the contested decision fulfils the requirements laid down by the case-law.

140 The Commission accordingly set out the reason why it had considered that the evidence produced by the applicants and their parent companies was not sufficient to rebut the presumption of exercise of a decisive influence. The contested decision therefore gave them the information necessary to defend their rights. In particular, the applicants were able either to contest the accuracy of that statement, by claiming that they had supported their assertions with adequate evidence, or to contest its relevance, by claiming that the assertions at issue, even if unsupported, were in the present case sufficient to rebut that presumption. That reasoning becomes fully apparent when considered alongside the relevant passage in the reply to the statement of objections, of which the applicants are aware, which does not refer to any document in support of the statements it contains (see paragraph 102 et seq. above).

141 Furthermore, as the Commission rightly points out, it is apparent from the case‑law that, although, under Article 253 EC, it is obliged to state the reasons on which its decisions are based, mentioning the factual and legal elements which provide the legal basis for the measure and the considerations which have led it to adopt its decision, it is not required to discuss all the issues of fact and law raised by every party during the administrative proceedings (Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, paragraph 88, and Case T-3/89 Atochem v Commission [1991] ECR II‑1177, paragraph 222). Therefore, although the Commission must reveal, in its decision, the reasons why it considers that the evidence adduced is insufficient to rebut the presumption of exercise of a decisive influence, it does not follow that it is required, in each case, to discuss specifically each of the pieces of evidence put forward by the undertakings concerned. A general reply, such as that given in the present case, may, depending on the circumstances of the case, suffice for the undertaking concerned properly to defend its rights and for the Court to exercise its review.

142 The fact that recital 269 to the contested decision does not reproduce all Arkema’s arguments is not decisive.

143 First, with regard to the argument that the control exercised by the parent companies was limited to authorising the largest investments and was too general for Arkema’s autonomy to be restricted, particularly with regard to the fixing of prices, it overlaps with the argument that ‘Atofina enjoy[ed] complete autonomy in its commercial policy and conduct on the market’, which is reproduced in recital 269(c) to the contested decision and responded to in recital 272 to the decision. Moreover, paragraphs 115 and 117 of the applicants’ reply to the statement of objections, in which that argument appears, do not refer to any document in support. The applicants could therefore see that the Commission’s statement in recital 272 to the contested decision also constituted a response to that argument.

144 Secondly, with regard to the argument that the directors of Total and Elf Aquitaine had never been involved in the alleged practices, it is apparent from the applicants’ reply to the statement of objections (see in particular paragraphs 91 to 105) that they raised that argument, in paragraphs 99 to 101 of that document, not to rebut the presumption of exercise of a decisive influence, but to show that ‘Elf Aquitaine and Total cannot be accused of having participated, either directly or indirectly, in the alleged practices’. However, it is apparent from the foregoing that the Commission did not base its attribution of the infringement at issue to the applicants’ parent companies on that factor. Therefore, the fact that it did not mention that argument in the contested decision can in no way constitute an infringement of the duty to state reasons.

145 As for the fact that the Commission did not expressly reply to the argument, reproduced in recital 269 to the contested decision, that the appointment of Arkema’s board of directors by Elf Aquitaine did not prove actual exercise of control, it should be pointed out that the Commission did not claim in the contested decision that that evidence was sufficient to justify the attribution of the infringement at issue to the applicants’ parent companies. Admittedly, the Commission stated, in recital 264 to the contested decision, that ‘the members of the board of Arkema ... were appointed by Elf Aquitaine ...’ and that that fact, as well as the shareholding link between those two companies, permitted it to presume that Elf Aquitaine had a decisive influence and actual control over the conduct of its subsidiary Arkema. However, as stated in paragraphs 68 and 69 above, it is apparent from the broad logic of the contested decision that that evidence was mentioned only for the sake of completeness and that it was not a requirement for the attribution of the infringement at issue to the applicants’ parent companies. Consequently, the absence of an express reply to that argument did not prevent the applicants knowing the justifications for that attribution or contesting it before the Court.

146 Moreover, as regards the argument relating to the wording of recital 271 to the contested decision, it should be pointed out that the Commission stated as follows:

‘[T]he fact that in a previous case the Commission addressed its decision to Atofina alone does not, as such, prevent the Commission from addressing its decision in this case to both Atofina and Total/Elf Aquitaine. The Commission has discretion to impute liability to a parent company in circumstances such as those in the present case ... and the fact that it has not done so in a previous decision does not prevent it from doing so in this case.’

147 Clearly, that passage in no way amounts to an admission that the Commission adopted an innovative approach in the present case, as the applicants claim. The Commission’s statement is intended merely to reject the argument, in recital 268 to the contested decision, that, in a previous decision addressed to Arkema, Arkema’s conduct was not attributed to its parent company (Organic peroxides decision). Moreover, it should be pointed out that, prior to the contested decision, the presumption of exercise of a decisive influence, based only on the shareholding link, had already been applied by the Commission in the MCAA decision, in which it had attributed the infringement committed by Arkema to Elf Aquitaine.

148 In any event, the case-law cited by the applicants only requires the Commission to give an explicit account of its reasoning if, in the course of its practice in taking decisions, it takes a decision which goes appreciably further than the previous decisions. It is therefore not sufficient, in such a case, to give cursory reasons, in particular by reference to established practice in taking decisions (see, to that effect, Silos, paragraph 131 above, paragraph 28). However, as is apparent from the foregoing, the Commission, in the contested decision, replied explicitly to Arkema’s arguments seeking to demonstrate the autonomy of its commercial policy.

149 Finally, the fact that, with regard to other subsidiaries sanctioned by the contested decision, the Commission pointed out that there was additional evidence supporting the presumption of exercise of a decisive influence by their parent companies does not affect the adequacy of the reasoning in respect of the applicants. Moreover, it is apparent from the foregoing (see paragraphs 68 and 69 above) that such additional evidence was noted only for the sake of completeness.

150 It follows that the first part of this plea must be rejected.

The second part, alleging infringement of the principle of sound administration

– Arguments of the parties

151 The applicants point out that, according to the case-law, under the principle of sound administration, the Commission has the obligation to examine carefully and impartially all the relevant aspects of the individual case. That obligation has fundamental importance in administrative procedures, such as competition procedures, in which the institutions have a power of appraisal in order to be able to fulfil their tasks.

152 In the present case, by basing its arguments merely on the presumption of control and by failing, as stated above, to reply to the arguments put forward by Arkema to rebut that presumption (in particular those which related to the irrelevance of the appointment of the members of the board of directors by Elf Aquitaine and Arkema’s commercial autonomy), the Commission did not examine carefully the relevant evidence in the present case and infringed the principle of sound administration.

153 Moreover, the applicants reject the Commission’s arguments according to which this complaint is interchangeable with the complaint concerning the lack of reasoning. They point out that the principle of sound administration is different from the duty to state reasons and pursues a different aim.

154 The Commission disputes those arguments.

– Findings of the Court

155 It should be pointed out that, according to settled case-law, where the European Union institutions have a power of appraisal in order to be able to fulfil their tasks, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and Case T‑44/90 La Cinq v Commission [1992] ECR II‑1, paragraph 86). That obligation arises under the principle of sound administration (see, to that effect, Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 269).

156 In support of this complaint, the applicants merely maintain that the Commission based its arguments on a mere presumption of a decisive influence exercised over them by their parent companies and failed to reply to the arguments put forward by Arkema to rebut that presumption, in particular the arguments relating to the irrelevance of the appointment of members of the board of directors by Elf Aquitaine and to Arkema’s commercial autonomy.

157 However, it is apparent from the foregoing, first of all, that recourse to that presumption is completely lawful. As is apparent from the examination of the first part of this plea, a reading of the relevant passages of the reply to the statement of objections and of the contested decision reveal that the Commission replied to the relevant arguments raised by the applicants and in particular those concerning Arkema’s commercial autonomy (argument reproduced in recital 269(c) to the contested decision to which a reply is given in recital 272 to the decision). In that regard it should be pointed out that the succinct nature of the reasoning therein, according to which ‘[t]he other arguments are assertions ... not supported by evidence to a sufficient degree to rebut the presumption’, does not on its own permit the finding that there has been an infringement of the obligation to examine carefully and impartially the relevant aspects arising from the administrative procedure. Moreover, it is apparent from the foregoing (see paragraph 102 et seq. above) that the assertion mentioned in recital 272 to the contested decision is correct, which presupposes that there was a careful and impartial examination carried out by the Commission.

158 Finally, with regard to the argument that the appointment of the members of Arkema’s board of directors by Elf Aquitaine does not in itself prove the actual exercise of control, it need only be said that the Commission did not claim the contrary in the contested decision. The decisive influence exercised by the applicants’ parent companies over the applicants was established on the basis of a presumption which was not rebutted during the administrative procedure. As has just been stated, the appointment of the members of Arkema’s board of directors by Elf Aquitaine was mentioned in that context for the sake of completeness. In those circumstances, the fact that the Commission did not specifically reply to that argument does not constitute an infringement of the obligation of sound administration.

159 Furthermore, it should be pointed out that, apart from the wording of the contested decision, the applicants do not produce any other evidence in support of their complaint.

160 Accordingly, the second part of this plea must be rejected and the third plea must therefore be rejected in its entirety.

The fourth plea, alleging failure to apply the criterion of the actual impact on the market in fixing the starting amount of the fine at EUR 65 million

Arguments of the parties

161 In this plea, the applicants argue that, by fixing the starting amount of the fine in their respect at EUR 65 million, the Commission failed to apply the criterion of the actual impact on the market, set out in the first paragraph of Section 1.A of the Guidelines.

162 In the first place, the applicants claim that the starting amount of the fine, namely EUR 65 million, is excessive since the infringement had only a very limited impact on the product market at issue.

163 In that regard, they maintain, first, that, contrary to what the Commission states in recital 329 to the contested decision, the impact of the infringement on the market could be measured. Consequently, it should have been taken into account in the determination of the gravity of the infringement, in accordance with the case-law and the Guidelines.

164 According to settled case-law, in order to assess the actual impact of an infringement on the market, the Commission must refer to the competition which would normally have existed without the infringement. That therefore involves being aware of the development of competition on the market concerned during the commission of the infringement and being able to compare that development with the exogenous market data.

165 In their reply to the statement of objections, the applicants provided the Commission with the data necessary for that purpose, namely detailed information concerning the development of the prices of the three PMMA products concerned from 1995 to 2003, including in relation to the development of the price of their raw materials. Moreover, the impact of the infringement could also be measured on the basis of the information concerning the development of the market shares of the various producers during the infringement, which was in the Commission’s possession, as is evidenced by the wording of the statement of objections.

166 Secondly, the applicants argue that, if the Commission had quantified the impact of the infringement on the market, it would have been bound to conclude that that impact was limited and it would then have fixed the starting amount of Arkema’s fine at a level lower than EUR 65 million.

167 In that regard, the applicants claim that the actual impact of the infringement was necessarily negligible, since the development of the prices of the products in question was closely related to that of the prices of the raw materials used in their manufacture and for which no infringement was found, as is apparent from the schedules provided by Arkema and annexed to its reply to the statement of objections.

168 Moreover, the Commission itself acknowledged, in the contested decision, that the infringement had had only an extremely limited impact on the markets in question. Accordingly, in recital 104 to the contested decision, relating to the general description of the implementation of the agreements, it acknowledged that it had not always been possible to implement the agreed price increases. Similarly, it is apparent from several recitals to the contested decision, devoted respectively to the three products concerned, that the price increases agreed at various meetings could not be implemented or had only a very limited effect.

169 Moreover, replying to the Commission’s arguments, the applicants state that they do not deny that the implementation, even in part, of an agreement may indicate the existence of an actual impact of such an agreement on the market, or even that the cartel in question may have had a certain impact on the PMMA market. They maintain, however, that that impact could be measured and, if the Commission had quantified that impact, it would have been bound to conclude that it was limited.

170 In the second place, the applicants maintain that the Commission infringed the duty to state reasons and the principle of sound administration in that it considered that the actual impact of the infringement did not have to be taken into consideration for the determination of the starting amount of the fine.

171 First, the applicants point out that the Commission merely stated that the impact of the infringement could not be measured, without adducing any evidence in support of that statement, in spite of the numerous pieces of evidence on the development of prices provided by Arkema during the course of the administrative procedure.

172 According to the applicants, it is for the Commission to show whether or not the impact of the infringement can be measured, in particular where, as in the present case, the parties to the administrative procedure adduce evidence relating to the effects of the infringement on the markets concerned. Otherwise, the Commission would need only to state that the impact of the infringement cannot be measured to avoid taking that impact into account when determining the starting amount of the fine.

173 Secondly, the applicants maintain that the Commission also infringed its duty to state reasons and the principle of sound administration in that it did not reply to the arguments, put forward by Arkema in response to the statement of objections, to show that the impact of the infringement on the market concerned was limited.

174 In conclusion, the applicants ask the Court to annul the disputed provisions of the contested decision and, in the exercise of its unlimited jurisdiction, to set the starting amount of their fine at a level lower than that imposed by the Commission, in the light of the limited impact of the infringement on the markets at issue.

175 The Commission disputes those arguments.

Findings of the Court

176 Section 1.A of the Guidelines states that ‘[i]n assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market’.

177 In this plea, the applicants claim, in essence, that, contrary to what the Commission states in the contested decision, the impact of the cartel at issue on the market could be measured. According to the applicants, if the Commission had quantified that impact, it would have been bound to conclude that it was limited and it would then have set the starting amount of Arkema’s fine at a level lower than EUR 65 million. Moreover, the applicants allege infringement of the duty to state reasons and of the principle of sound administration, in that the Commission did not substantiate its statement that the impact could not be measured and did not respond to the arguments put forward by Arkema in response to the statement of objections.

178 In that regard, it must be borne in mind that, according to the case-law of the Court of Justice, the gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Union (see 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, paragraphs 241 and 242 and the case‑law cited; see also, to that effect, Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 96).

179 It follows from this that the effect of an anti‑competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to intention may be more significant than those relating to that effect, particularly where the infringements are intrinsically serious (see Prym and Prym Consumer v Commission, paragraph 178 above, paragraph 96 and the case-law cited).

180 In that regard, it has consistently been held that, by reason of their very nature, cartels merit the severest fines. Their possible concrete impact on the market, particularly the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel, is not a decisive factor for determining the level of fines (Case T‑127/04 KME Germany and Others v Commission [2009] ECR II‑1167, paragraph 64). The three aspects of the assessment of the gravity of the infringement do not carry the same weight in the context of an overall examination. The nature of the infringement plays a primary role, in particular, for classifying infringements as ‘very serious’ (Case T-73/04 Carbone‑Lorraine v Commission [2008] ECR II‑2661, paragraph 91).

181 Accordingly, as the Court of Justice has held, it is apparent from the Guidelines that the Commission may classify horizontal price or market-sharing agreements as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market. In that case, the actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely amount of EUR 20 million (Prym and Prym Consumer v Commission, paragraph 178 above, paragraph 75, and Erste Group Bank and Others v Commission, paragraph 122 above, paragraph 103). The Court therefore emphasised that the actual impact of the infringement on the market was an optional element which the Commission could take into account for the purposes of calculating the fine, if it considered it appropriate (see, to that effect, Prym and Prym Consumer v Commission, paragraph 178 above, paragraph 82).

182 Furthermore, it has been held that the fact that, in the Guidelines, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines (Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 122 above, paragraph 237).

183 In the light of that case-law, the arguments presented by the applicants do not affect the legality of the contested decision in so far as concerns the determination of the starting amount.

184 First, it follows that, even if, as the applicants maintain, the impact of the infringement at issue on the development of prices was limited, its classification as a very serious infringement is still appropriate in the light of its very nature and of its geographic extent (namely the territory of the EEA). Moreover, it should be pointed out that, in its conclusion on the gravity of the infringement, in recital 331 to the contested decision, the Commission classified the infringement as very serious ‘[i]n view of the nature of the infringement and the fact that it covered the entire territory of the EEA’. Accordingly, the criterion of the actual impact on the market played no part in the classification of the infringement.

185 Secondly, there is nothing in the contested decision to indicate that, if the Commission had concluded that the impact of the cartel at issue on the market was limited, it would have set the starting amount of Arkema’s fine at a level lower than EUR 65 million.

186 In that regard, although the Commission stated that the cartel at issue did indeed have an impact on the market owing to the implementation of the price agreements and practices (see recitals 321 and 329 to the contested decision), it also stated that ‘[i]n this proceeding, it [was] not possible to measure the actual impact [of the infringement] on the market ... and therefore the Commission does not rely specifically on a particular impact, in line with the Guidelines according to which the actual impact should be taken into account when it can be measured’ (recital 321) and that the ‘impact [of the cartel at issue on the market could] not be measured with precision’. Moreover, as pointed out above, its conclusion on the gravity of the infringement, in recital 331 to the contested decision, does not mention the criterion of the actual impact on the market.

187 Clearly, that