Judgment of the General Court (Eighth Chamber) of 16 September 2013 — CEPSA v Commission

(Case T‑497/07)

‛Competition — Agreements, decisions and concerted practices — Spanish market for penetration bitumen — Annual market-sharing and price-fixing agreements — Translation of the statement of objections — Imputability of the unlawful conduct — Reasonable period — Principle of impartiality — Calculation of the amount of the fine — Res judicata’

1. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the hearing — Inadmissibility (Rules of Procedure of the General Court, Art. 48(2), first para.) (see para. 120)

2. 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 (Art. 81 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2)) (see paras 128-133, 136)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Plea based on lack or inadequacy of reasoning — Plea alleging incorrectness of the statement of reasons — Distinction (Art. 253 EC) (see para. 140)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Imputation of the practices of a subsidiary to its parent company — Need for an express statement of reasons (Arts 81 EC and 253 EC) (see paras 151-156)

5. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption (Art. 81 EC) (see paras 165-167, 191, 207, 208, 214, 330)

6. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Annulment of the decision finding an infringement by reason of excessive duration of the procedure — Condition — No harm to the rights of defence of the undertakings concerned — Compliance with the limitation period laid down by Regulation No 1/2003 — Inapplicability of considerations linked to the principle that action must be taken within a reasonable time (Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 25) (see paras 239, 240, 245, 246)

7. Competition — Fines — Amount — Judicial review — Unlimited jurisdiction — Reduction in the amount of the fine for infringement of the principle that action must be taken within a reasonable time — Lawfulness (Art. 81(1) EC; Council Regulation No 1/2003, Art. 31) (see paras 243, 244)

8. Actions for annulment — Pleas in law — Infringement by the EU judicature of the principle that legal proceedings should be completed within a reasonable time — Plea raised in the context of the procedure itself — Inadmissibility — No infringement of the principle of the right to access to a court (see paras 268, 269)

9. Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No requirement to determine their impact and their geographical extent (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 281, 282)

10. Competition — Fines — Amount — Determination — No obligation on the Commission to adhere to its previous decision-making practice (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) (see paras 285-287)

11. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic entity operating as an undertaking (Art. 81 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2)) (see para. 328)

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Establishment of a programme for compliance with competition rules — Not imperative to take into account — First infringement attributable to an undertaking — Not included (Art. 81(1) EC; Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03) (see paras 337, 338, 340, 341)

13. Actions for annulment — Judgment annulling a measure — Scope — Absolute authority of res judicata — Scope — Both operative part and grounds to be taken into account (see paras 356, 357, 362-364, 366)

14. Actions for annulment — Judgment annulling a measure — Effects — Annulment of a Commission decision finding a breach of the competition rules — Effects in relation to addressees who have not brought an action — Account taken by the Court in the action brought by the parent company of the outcome of the action brought by the subsidiary (Arts 81 EC and 230 EC) (see paras 358, 359)

Re:

APPLICATION for annulment of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP-38.710 Bitumen (Spain)), and for reduction in the amount of the fine imposed on the applicant in that decision.

Operative part

The Court:

1. Dismisses the action;

2. Dismisses the claim of the European Commission regarding the amount of the fine;