CELEX: 62005TJ0168
Language: en
Date: 2009-09-30
Title: Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009. # Arkema SA v Commission of the European Communities. # Competition - Agreements, decisions and concerted practices - Market for monochloroacetic acid - Decision finding an infringement of Article 81 EC - Market sharing and price fixing - Imputability of the unlawful conduct - Principle that penalties must fit the offence - Obligation to state the reasons on which the decision is based - Fines - Proportionality - Gravity and duration of the infringement - Deterrent effect - Actual impact on the market - Attenuating circumstances - Role of follower - Aggravating circumstances - Repeated infringement. # Case T-168/05.

Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 – Arkema v Commission
      (Case T-168/05)
      Competition – Agreements, decisions and concerted practices – Market for monochloroacetic acid – Decision finding an infringement of Article 81 EC – Market sharing and price fixing – Imputability of the unlawful conduct – Principle that penalties must fit the offence – Obligation to state the reasons on which the decision is based – Fines – Proportionality – Gravity and duration of the infringement – Deterrent effect – Actual impact on the market – Attenuating circumstances – Role of follower – Aggravating circumstances – Repeated infringement
      1.                     Competition – Agreements, decisions and concerted practices – Undertaking – Concept – Economic unit – Attribution of infringements
            – Parent company and subsidiaries – Joint and several liability of the companies concerned – Infringement of the principle
            that penalties must fit the offence – None (Art. 81(1) EC) (see paras 65-66, 80, 97-99, 105-108, 129)
      2.                     Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for
            assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Obligation
            of the parent company to rebut the presumption that management power was actually exercised over its subsidiary – Applicability
            of the presumption where the parent company holds nearly all the capital of the subsidiary (Arts 81 EC and 82 EC) (see paras
            67-70, 74-77, 81-82, 100)
      3.                     Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for
            assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned or part-owned subsidiaries
            (Arts 81 EC and 82 EC) (see paras 89-92, 115)
      4.                     Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules (Arts 81 EC, 82
            EC and 253 EC) (see paras 121, 127)
      5.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive
            or ‘follow-my-leader’ role of the undertaking (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission
            Communication 98/C 9/03, Section 3) (see paras 148-149, 153)
      6.                     Competition – Fines – Amount – Determination – Criteria – Actual impact on the market – Criteria for assessment (Commission
            Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A, first para.) (see
            paras 162-165)
      7.                     Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size and global resources of the fined
            undertaking – Relevance – Application of a multiplier to the starting amount – Breach of principle of proportionality – None
            (Council Regulations Nos 17, Art. 15, and 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 1A) (see paras 178-183,
            206-207)
      8.                     Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Increase in the starting amount of
            the fine – Taking into account of variations in the intensity of the infringement – Not included (Council Regulations Nos
            17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1B) (see paras 187-189)
      9.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated
            infringement – Change of control of a repeatedly infringing company taking place between the two infringements – Application
            of the increase in the fine’s amount for repeat infringement only to the subsidiary and not to the company controlling it
            at the time the Commission’s decision was adopted – Lawfulness (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3);
            Commission Communication 98/C 9/03) (see paras 200-205)
      Re: 
      
         
               APPLICATION for, primarily, annulment of Article 1(d), Article 2(c) and Article 4(9) of Commission Decision C(2004) 4876 final
                  of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case No COMP/E-1/37.773
                  – MCAA) and, in the alternative, request to amend Article 2(c) and (d) of that decision.
               
            Operative part
      The Court:
      
         
                  1.
               
               
                  
               
               
                  	Dismisses the action;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders Arkema SA to pay the costs.