Judgment of the General Court (Seventh Chamber) of 13 December 2012 — Versalis and Eni v Commission

(Case T-103/08)

‛Competition — Agreements, decisions and concerted practices — Chloroprene rubber market — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Attributability of the unlawful conduct — Duty to state reasons — Rights of the defence — Evidence of involvement in the cartel — Single and continuous infringement — Fines — Gravity and duration of the infringement — Repeat offending — Deterrence — Attenuating circumstances — Maximum turnover limit of 10% — Cooperation — 2002 Leniency Notice — Equal treatment — Proportionality’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC) (see paras 53-59, 61, 62, 67-70, 73-77, 269, 271, 276)

2. Competition — Union rules — Infringements — Attribution — ‘Economic continuity’ criterion between undertakings — Infringement committed by a body not seizing to exist and continued by another body succeeding it in the business on the market concerned — Attribution of the whole of the infringement to that other body — Lawfulness (Arts 81 EC and 82 EC) (see paras 89, 90, 93-98, 105)

3. Actions for annulment — Actionable measures — Grounds of a decision — Not included (Art. 230 EC) (see paras 106, 111, 112)

4. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the main factual and legal elements likely to entail a fine (Council Regulation No 1/2003, Art. 27) (see paras 114, 273)

5. Agreements, decisions and concerted practices — Evidence — Degree of precision required of the evidence used by the Commission — Burden of proof (Art. 81(1) EC) (see paras 147-157)

6. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices capable of being regarded as constituting a single infringement — Attribution of liability for an undertaking by reason of participation in the infringement considered as a whole — Lawfulness — Anti-competitive object — Sufficient (Art. 81(1) EC) (see paras 209-211)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission (Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02(5) to (7) and (19) to (23)) (see paras 229-242)

8. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last complete year of the infringement (Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02(13)) (see paras 243-245)

9. Competition — Fines — Amount — Determination — Deterrent effect — General requirement having to guide the Commission throughout the calculation of fines — Specific stage for an overall assessment of all relevant circumstances not imperative (Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02(21) to (30)) (see paras 246-250, 316, 317)

10. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Concept — No time-limit — Discretion of the Commission (Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02(28)) (see paras 263-268, 283-286)

11. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Assessment — No need to take separate account of each of the circumstances — Global assessment (Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02(29)) (see paras 296-300, 306, 307)

12. Competition — Fines — Amount — Determination — Deterrent effect — Application of an incorrect multiplying coefficient — Breach of the principle of equal treatment (Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02(30)) (see paras 318, 324-326)

13. Competition — Fines — Amount — Determination — Criteria — Reduction in the amount of the fine in return for cooperation of the undertaking concerned — Conditions — Discretion of the Commission (Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03(8), (20) and (21), and 2006/C 210/02(29), fourth indent) (see paras 335-338, 350-360, 364)

Re:

ACTION for the partial annulment of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38629 — Chloroprene rubber), in so far as it concerns the applicants, and, in the alternative, a request for annulment or reduction of the level of the fine imposed jointly on the applicants by that decision.

Operative part

The Court:

1. Fixes the level of the fine imposed jointly and severally on Eni SpA and Versalis SpA for the offence stated in Article 1(d) of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38629 — Chloroprene rubber) at EUR 106 200 000;

2. Dismisses the remainder of the action;