Judgment of the General Court (Third Chamber) of 23 January 2014 — Evonik Degussa and AlzChem v Commission

(Case T‑391/09)

‛Competition — Cartels — Market in calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Imputability of the unlawful conduct — Fines — Cooperation during the administrative procedure — Aggravating circumstances — Repeated infringement — Mitigating circumstances — Proportionality — Duration of the infringement — Joint and several liability for payment of a fine — 2006 guidelines on the method of setting fines’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof — Infringement of the presumption of innocence — None — Infringement of the principle of individual responsibility — None — Infringement of principle that penalties should be individual to the offender — None (Arts 81 EC and 82 EC) (see paras 16-21, 24, 25, 30-38, 47, 48, 77, 89, 94, 96, 152)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules and concerning a number of addressees — Attribution of the practices of a subsidiary to its parent company — Need for express statement of reasons — Scope (Arts 81 EC and 253 EC) (see paras 59-61)

3. Competition — Fines — Amount — Determination — Criteria — Turnover taken into consideration (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 129, 131)

4. Competition — Fines — Imposition — No requirement that the undertaking benefited from the infringement — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Absence of benefit — Not included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 29 and 31) (see paras 133, 238-242)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Concept (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 28) (see paras 141-145, 153, 155)

6. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 166, 261)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Establishment of an alignment programme to comply with the competition rules — Not imperative to take into account (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see paras 168, 169, 174, 175, 183)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Poor financial state of the sector in question — Not included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see para. 187)

9. Competition — Fines — Amount — Determination — Commission’s margin of discretion — Limits — Compliance with the leniency notice (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, point 23) (see paras 201-203, 210, 211)

10. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Discretion of the Commission — Inclusion in the basic amount of the fine of the entry amount and increase of that amount for repeat infringement — Lawfulness — Rounding of the duration of participation of various undertakings in the same single infringement — Justification — None — Breach of principle of proportionality (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19-26) (see paras 218-223, 225-236)

11. Competition — Fines — Joint and several liability for payment — Conditions — Economic unit — Exceptions (Art. 81 EC) (see paras 244-246, 271)

12. Actions for annulment — Interest in bringing proceedings — Commission decision finding an infringement of the competition rules and imposing a fine — Undertaking designated with other entities as being jointly and severally liable — Admissibility (Arts 81 EC and 230, fourth para., EC) (see paras 258-260)

13. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — New plea — Definition (Rules of Procedure of the General Court, Art. 48(2), first para.) (see paras 280, 281)

14. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Mere reference to an earlier judgment of the General Court — Inadmissibility (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c), and 48(2)) (see paras 282-285)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it relates to the applicants or, in the alternative, an application for amendment of that decision seeking, first, annulment or reduction of the fine imposed on the applicants and, second, that that fine be imposed in its entirety on SKW Stahl Technik GmbH & Co. KG, jointly and severally with the applicants.

Operative part

The Court:

1. Annuls Article 2(g) and (h) of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it relates to Evonik Degussa GmbH and AlzChem AG subject to the qualification that that annulment does not have a bearing on the discharging effect of any payment made by one or other of those two companies in connection with the fine imposed jointly and severally in respect of the finding of infringement in Article 1(f) of that decision against Stahl Technik GmbH & Co. KG and on the relief afforded to Stahl Technik GmbH & Co. KG and on the fine which was imposed on it under Article 2(g) of that decision;

2. In respect of the infringement findings in Article 1(f) of Decision C(2009) 5791 final against Evonik Degussa and AlzChem, imposes the following fines:

– on Evonik Degussa and AlzChem jointly and severally: EUR 2.49 million, subject to the qualification that Evonik Degussa et AlzChem will be deemed to have satisfied the payment of that fine up to the amount paid by SKW Stahl Technik in respect of the fine which was imposed on it under Article 2(g) of that decision;

– on Evonik Degussa, exclusively liable for payment of that fine, EUR 1.24 million;

3. Dismisses the action as to the remainder;

4. Orders Evonik Degussa and AlzChem to bear two-thirds of their own costs and two-thirds of those of the European Commission. The Commission is ordered to bear one-third of its own costs and one-third of those of Evonik Degussa and AlzChem.

Judgment of the General Court (Third Chamber) of 23 January 2014 — Evonik Degussa and AlzChem v Commission

(Case T‑391/09)

‛Competition — Cartels — Market in calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Imputability of the unlawful conduct — Fines — Cooperation during the administrative procedure — Aggravating circumstances — Repeated infringement — Mitigating circumstances — Proportionality — Duration of the infringement — Joint and several liability for payment of a fine — 2006 guidelines on the method of setting fines’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof — Infringement of the presumption of innocence — None — Infringement of the principle of individual responsibility — None — Infringement of principle that penalties should be individual to the offender — None (Arts 81 EC and 82 EC) (see paras 16-21, 24, 25, 30-38, 47, 48, 77, 89, 94, 96, 152)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules and concerning a number of addressees — Attribution of the practices of a subsidiary to its parent company — Need for express statement of reasons — Scope (Arts 81 EC and 253 EC) (see paras 59-61)

3. Competition — Fines — Amount — Determination — Criteria — Turnover taken into consideration (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 129, 131)

4. Competition — Fines — Imposition — No requirement that the undertaking benefited from the infringement — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Absence of benefit — Not included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 29 and 31) (see paras 133, 238-242)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Concept (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 28) (see paras 141-145, 153, 155)

6. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 166, 261)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Establishment of an alignment programme to comply with the competition rules — Not imperative to take into account (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see paras 168, 169, 174, 175, 183)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Poor financial state of the sector in question — Not included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see para. 187)

9. Competition — Fines — Amount — Determination — Commission’s margin of discretion — Limits — Compliance with the leniency notice (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, point 23) (see paras 201-203, 210, 211)

10. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Discretion of the Commission — Inclusion in the basic amount of the fine of the entry amount and increase of that amount for repeat infringement — Lawfulness — Rounding of the duration of participation of various undertakings in the same single infringement — Justification — None — Breach of principle of proportionality (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19-26) (see paras 218-223, 225-236)

11. Competition — Fines — Joint and several liability for payment — Conditions — Economic unit — Exceptions (Art. 81 EC) (see paras 244-246, 271)

12. Actions for annulment — Interest in bringing proceedings — Commission decision finding an infringement of the competition rules and imposing a fine — Undertaking designated with other entities as being jointly and severally liable — Admissibility (Arts 81 EC and 230, fourth para., EC) (see paras 258-260)

13. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — New plea — Definition (Rules of Procedure of the General Court, Art. 48(2), first para.) (see paras 280, 281)

14. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Mere reference to an earlier judgment of the General Court — Inadmissibility (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c), and 48(2)) (see paras 282-285)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it relates to the applicants or, in the alternative, an application for amendment of that decision seeking, first, annulment or reduction of the fine imposed on the applicants and, second, that that fine be imposed in its entirety on SKW Stahl Technik GmbH & Co. KG, jointly and severally with the applicants.

Operative part

The Court:

1. Annuls Article 2(g) and (h) of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it relates to Evonik Degussa GmbH and AlzChem AG subject to the qualification that that annulment does not have a bearing on the discharging effect of any payment made by one or other of those two companies in connection with the fine imposed jointly and severally in respect of the finding of infringement in Article 1(f) of that decision against Stahl Technik GmbH & Co. KG and on the relief afforded to Stahl Technik GmbH & Co. KG and on the fine which was imposed on it under Article 2(g) of that decision;

2. In respect of the infringement findings in Article 1(f) of Decision C(2009) 5791 final against Evonik Degussa and AlzChem, imposes the following fines:

– on Evonik Degussa and AlzChem jointly and severally: EUR 2.49 million, subject to the qualification that Evonik Degussa et AlzChem will be deemed to have satisfied the payment of that fine up to the amount paid by SKW Stahl Technik in respect of the fine which was imposed on it under Article 2(g) of that decision;

– on Evonik Degussa, exclusively liable for payment of that fine, EUR 1.24 million;

3. Dismisses the action as to the remainder;