CELEX: 62009TJ0146
Language: en
Date: 2013-05-17
Title: Judgment of the General Court (First Chamber), 17 May 2013.#Parker ITR Srl and Parker-Hannifin Corp. v European Commission.#Competition — Agreements, decisions and concerted practices — European market for marine hoses — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Price-fixing, market-sharing and the exchange of commercially sensitive information — Attributability of unlawful conduct — Fines — 2006 Guidelines on the method of setting fines — Legitimate expectations — Ceiling of 10% — Mitigating circumstances — Cooperation.#Case T‑146/09.

JUDGMENT OF THE GENERAL COURT (First Chamber)
      17 May 2013 (
            *1
         )
      ‛Competition — Agreements, decisions and concerted practices — European market for marine hoses — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Price-fixing, market-sharing and the exchange of commercially sensitive information — Attributability of unlawful conduct — Fines — 2006 Guidelines on the method of setting fines — Legal certainty — Ceiling of 10% — Mitigating circumstances — Cooperation’
      In Case T-146/09,
      
         Parker ITR Srl, established in Veniano (Italy),
      
         Parker-Hannifin Corp., established in Mayfield Heights (Ohio, United States), represented by B. Amory, F. Marchini Càmia, and F. Amato, lawyers,
      applicants,
      v
      
         European Commission, represented initially by N. Khan, V. Bottka and S. Noë, and subsequently by V. Bottka, S. Noë and R. Sauer, acting as Agents,
      defendant,
      APPLICATION for partial annulment of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine hoses), in so far as that decision concerns the applicants, and, in the alternative, for annulment or a substantial reduction in the fine imposed on them in that decision,
      THE GENERAL COURT (First Chamber),
      composed of J. Azizi, President, M. Prek and S. Frimodt Nielsen (Rapporteur), Judges,
      Registrar: J. Weychert, Administrator,
      having regard to the written procedure and further to the hearing on 27 April 2012,
      gives the following
      
         Judgment
      
      
         Background to the dispute
      
      
         The marine oil and gas hoses sector
      
      
               1
            
            
               Marine hoses are used to load sweet or processed crude oil and other petroleum products from offshore facilities (for example, buoys – normally anchored offshore and serving as a mooring point for tankers – or floating production, storage and offloading systems – which are floating tank systems used to take the oil or gas from a nearby platform, process it and store it until it is offloaded on to a tanker) on to vessels and then to offload those products from those vessels to offshore (for example buoys) or onshore facilities.
            
         
               2
            
            
               Marine hoses are used offshore – that is to say, in or near the water – while industrial or onshore hoses are used on land.
            
         
               3
            
            
               Each marine hose installation is composed, according to customers’ specific needs, of a number of standard hoses, specific hoses with connections at both ends and ancillary equipment, such as valves, end gear or floating equipment. In the present case, the expression ‘marine hoses’ includes that ancillary equipment.
            
         
               4
            
            
               Marine hoses are used by petroleum companies, buoy manufacturers, port terminals, the oil industry and governments, and are purchased either for new projects or for replacement purposes.
            
         
               5
            
            
               With respect to new projects, oil terminals or other end-users usually engage an engineering company (also known as an ‘original equipment manufacturer’ or ‘OEM’) to construct or install new oil distribution facilities, such as single buoy moorings or floating production, storage and offloading systems. For such projects, the manufacturer purchases an entire marine hoses installation from a producer.
            
         
               6
            
            
               When those marine hoses have been installed, the individual parts must be replaced within a period of between one and seven years. Purchases of marine hoses for replacement purposes (also referred to as ‘spares business’) are often made directly by end-users. In some cases, however, end-users outsource and centralise their purchases to subsidiaries or external companies. Replacement sales account for a greater proportion of the worldwide marine hoses market than sales of new products.
            
         
               7
            
            
               Demand for marine hoses largely depends on the development of the oil sector, and in particular on oil exploitation in areas remote from the place of consumption. Demand has expanded over time. It is cyclical and to a certain extent linked with the development of oil prices. It started to become significant in the late 1960s and rose in the early 1970s, in particular from oil-producing regions in the Persian Gulf, the North Sea and North Africa. During the 1980s demand from national oil companies in South America increased. In the late 1990s demand moved towards West Africa.
            
         
               8
            
            
               Marine hoses are manufactured by undertakings known for the manufacture of tyres and rubber or by one of their ‘spin-offs’. They are produced on demand, according to the specific needs of customers. As demand for marine hoses is widely dispersed, most marine hose producers engage a significant number of agents who, for specific markets, provide general marketing services and offer their products in the context of published calls for tenders.
            
         
               9
            
            
               Marine hoses are marketed throughout the world and the main producers are active at worldwide level. The regulatory requirements for marine hoses are not fundamentally different from one country to another and while technical requirements differ according to the environment and conditions of use, that is not seen as an obstacle to the sale of marine hoses throughout the world.
            
         
               10
            
            
               Lastly, during the period under consideration, the participants in the cartel sold marine hoses produced in Japan, the United Kingdom, Italy and France to end-users and also to OEMs established in different countries of the European Union and the European Economic Area (EEA). While the final destination of most marine hoses systems is in non-European regions, some of the main worldwide OEMs are based in different countries of the European Union and the EEA.
            
         
         Presentation of the applicants
      
      
               11
            
            
               One of the two applicants, Parker-Hannifin Corp. is active in the manufacture of motion and control systems and technologies, providing precision engineered solutions for a wide range of commercial, mobile, industrial and aerospace markets.
            
         
               12
            
            
               Parker-Hannifin is divided into eight groups: Aerospace, Hydraulics, Filtrations, Climate and Industrial Control, Fluid Connectors, Seal, Instrumentation and Automation/Pneumatics. The Fluid Connectors group is divided into four geographic regions (North America, South America, the European Union and Asia). Within the European Union, the Fluid Connectors group has four divisions and one business unit. The products of the business unit are sold on the global marine oil and gas market.
            
         
               13
            
            
               Parker-Hannifin is the parent company of Parker-Hannifin International Corp., which in turn is the parent company of Parker Italy Holding LLC. Parker Italy Holding LLC owns Parker Italy Holding Srl, the parent company of Parker ITR Srl.
            
         
               14
            
            
               Parker-Hannifin’s worldwide consolidated turnover for all products during the business year 2006 was EUR 7 410 million.
            
         
               15
            
            
               Parker ITR manufactures and markets industrial and hydraulic hoses, marine oil and gas hoses and technical compounds. Its worldwide turnover in 2006 was EUR [confidential] (
                     1
                  ). It is based in Veniano (Italy).
            
         
               16
            
            
               The marine oil and gas hose business owned by Parker ITR was established in 1966 by Pirelli Treg SpA, a company belonging to the Pirelli group.
            
         
               17
            
            
               In December 1990 Pirelli Treg’s business in the marine hose sector was taken over by ITR SpA, a company resulting from the merger of Pirelli Treg with Itala, another subsidiary of the Pirelli group. In 1993 ITR SpA was acquired by Saiag SpA.
            
         
               18
            
            
               After opening negotiations with Parker-Hannifin concerning the possible sale of, inter alia, its marine hose business, ITR created a subsidiary, ITR Rubber Srl, on 27 June 2001.
            
         
               19
            
            
               In that regard, first, on 5 December 2001 Parker-Hannifin Holding, a newly-formed subsidiary within the Parker group whose purpose was to buy the rubber hose business from ITR, and ITR entered into an agreement under which Parker-Hannifin Holding acquired 100% of the shares in ITR Rubber.
            
         
               20
            
            
               Secondly, the provisions in section (e) of the ‘Premises’ of the agreement state that the contribution of the rubber hose business from ITR to ITR Rubber was at the request of Parker-Hannifin Holding.
            
         
               21
            
            
               Thirdly, section 3.1.3 of the agreement provides that ‘[t]he obligation of [Parker-Hannifin Holding] is … conditional upon [ITR] having carried out the Contribution’. [ITR] ‘will keep [Parker-Hannifin Holding] constantly informed of the progress of the Contribution procedure and will agree with [Parker-Hannifin Holding] on every material change to the Contribution … that becomes necessary or [is] deemed to be opportune’.
            
         
               22
            
            
               Fourthly, section 7.1.2 of the agreement states that ITR Rubber, which was formed ‘for the purposes of the Contribution and prior to the … [d]ate’ thereof ‘did not trade, file account or undertake any activity other than those necessary for the Contribution to be fully effective and since the Contribution Date it has carried on the Business in the ordinary course and carried out no other activity’.
            
         
               23
            
            
               On 19 December 2001, ITR transferred its rubber hose business (including the marine hose business) to ITR Rubber.
            
         
               24
            
            
               The transfer took effect on 1 January 2002.
            
         
               25
            
            
               On 31 January 2002 ITR Rubber was acquired by Parker-Hannifin Holding and a few months later ITR Rubber was renamed Parker ITR.
            
         
               26
            
            
               Parker-Hannifin Holding, and then Parker Italy Holding Srl, holds 100% of the shares in Parker ITR.
            
         
         The administrative procedure
      
      
               27
            
            
               At the time when investigations were initiated in respect of similar facts by the United States Department of Justice and the Japanese and United Kingdom competition authorities, [confidential], relying on the leniency programme provided for in the Commission’s Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) (‘the Leniency Notice’), applied to the Commission of the European Communities, on 20 December 2006, for immunity, reporting the existence of a cartel on the marine hoses market.
            
         
               28
            
            
               The Commission then initiated an investigation for infringement of Article 81 EC and Article 53 of the EEA Agreement and on 2 May 2007 carried out a series of inspections at the premises of Parker ITR, other producers concerned and also [confidential] and Mr P.W.
            
         
               29
            
            
               Manuli Rubber Industries, Parker ITR and Bridgestone submitted applications to the Commission for leniency on 4 May, 17 July and 7 December 2007 respectively.
            
         
               30
            
            
               On 28 April 2008 the Commission adopted a statement of objections, which it notified to the various companies concerned between 29 April and 1 May 2008.
            
         
               31
            
            
               All replied to the statement of objections within the prescribed period and, with the exception of [confidential]/DOM, ContiTech AG and Continental AG, requested to be heard at an oral hearing, which was held on 23 July 2008.
            
         
         The contested decision
      
      
               32
            
            
               On 28 January 2009, the Commission adopted Decision C(2009) 428 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine hoses) (‘the contested decision’). It follows, in substance, from the contested decision that:
               
                        —
                     
                     
                        it was addressed to 11 companies, including the applicants;
                     
                  
                        —
                     
                     
                        the companies to which it refers participated, sometimes in different ways, in a single, complex infringement with the objectives of the allocation of tenders; price-fixing; quota-fixing; the fixing of sales conditions; the sharing of geographic markets; and the exchange of sensitive information on prices, sales volumes and procurement tenders;
                     
                  
                        —
                     
                     
                        the cartel began at least on 1 April 1986 (although it is likely that it dates from the early 1970s) and ended on 2 May 2007;
                     
                  
                        —
                     
                     
                        from 13 May 1997 until 11 June 1999 the cartel was less active and friction arose between its members. However, according to the Commission, that did not entail a real interruption of the infringement. The organised structure of the cartel was re-established in full from June 1999, according to the same procedures and with the same participants (apart from Manuli, which was wholly re-integrated in the cartel the following year). It must therefore be considered that the producers committed a single and continuous infringement which lasted from 1 April 1986 until 2 May 2007, or, at least, if in spite of everything it should be considered that there was an interruption, a single, repeated infringement. However, the period from 13 May 1997 until 11 June 1999 is not taken into consideration in the calculation of the fine, in view of the limited amount of evidence of the infringement for that period;
                     
                  
                        —
                     
                     
                        the applicants were held liable for the following periods:
                        
                                 —
                              
                              
                                 Parker ITR: from 1 April 1986 until 2 May 2007;
                              
                           
                                 —
                              
                              
                                 Parker-Hannifin: from 31 January 2002 until 2 May 2007;
                              
                           
                  
                        —
                     
                     
                        in application of the criteria provided for in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines’), the basic amount of the fine to be imposed on each of the companies was determined as follows:
                        
                                 —
                              
                              
                                 the Commission took as its basis the worldwide average annual sales of each of the companies during the period 2004 to 2006, with the exception of Yokohama Rubber, for which it took the period 2003 to 2005, and also sales invoiced to purchasers established in the EEA;
                              
                           
                                 —
                              
                              
                                 it determined the relevant sales of each undertaking by applying their worldwide market share to aggregate sales within the EEA, in accordance with point 18 of the Guidelines;
                              
                           
                                 —
                              
                              
                                 it took 25% of that value (instead of the 30% maximum provided for in the Guidelines) in consideration of the gravity of the infringement;
                              
                           
                                 —
                              
                              
                                 it multiplied the value thus obtained by the number of years of each company’s participation in the infringement;
                              
                           
                                 —
                              
                              
                                 last, in accordance with point 25 of the Guidelines, it applied an additional sum equal to 25% of the relevant sales for the purposes of deterrence;
                              
                           
                                 —
                              
                              
                                 the Commission then applied aggravating circumstances against Parker ITR and another company and rejected all mitigating circumstances for the other members of the cartel;
                              
                           
                                 —
                              
                              
                                 last, pursuant to the Leniency Notice, the Commission reduced the fines imposed on two companies, but rejected the applications for a reduction submitted by Parker ITR and another company.
                              
                           
                  
         
               33
            
            
               As regards Parker ITR, the Commission considered that the value of its sales came to EUR [confidential] on the basis of a worldwide market share of [confidential], that Parker ITR had participated in the cartel for 19 years and 5 days, which gave a multiplier of 19, and Parker-Hannifin for 5 years, 3 months and 3 days, which gave a multiplier of 5.5, and, in application of the various factors set out in the preceding paragraph, set the basic amount of the fine at EUR 19 700 000 for Parker ITR and at EUR 6 400 000 for Parker-Hannifin.
            
         
               34
            
            
               In the light of the aggravating circumstances found against Parker ITR and Parker-Hannifin, the fines were then increased to EUR 25 610 000 for Parker ITR, for EUR 8 320 000 of which Parker-Hannifin is jointly and severally liable.
            
         
         Procedure and forms of order sought
      
      
               35
            
            
               By application lodged at the Registry of the General Court on 9 April 2009, the applicants brought the present action.
            
         
               36
            
            
               As a Member of the First Chamber was unable to sit in the present case, the President of the Court designated another judge to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure of the General Court.
            
         
               37
            
            
               On hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, requested that the parties lodge certain documents and put questions to them in writing. The parties complied with that request.
            
         
               38
            
            
               By letter of 12 March 2012, the applicants submitted a request for a measure of organisation of procedure, seeking to lodge new documents.
            
         
               39
            
            
               The parties presented oral argument and replied to the questions put by the Court at the hearing on 27 April 2012.
            
         
               40
            
            
               The applicants withdrew their request for a measure of organisation of procedure on that occasion.
            
         
               41
            
            
               The applicants claim that the Court should:
               
                        —
                     
                     
                        annul the contested decision in so far as it holds Parker ITR liable from 1 April 1986 until 9 June 2006 and Parker-Hannifin liable from 31 January 2002 until 9 June 2006;
                     
                  
                        —
                     
                     
                        substantially reduce the fines imposed on the applicants;
                     
                  
                        —
                     
                     
                        order the Commission to pay the costs.
                     
                  
         
               42
            
            
               The Commission contends that the Court should:
               
                        —
                     
                     
                        dismiss the action;
                     
                  
                        —
                     
                     
                        order the applicants to pay the costs.
                     
                  
         
         Law
      
      
         The claims for annulment
      
      
               43
            
            
               The applicants put forward nine pleas in law in support of the action.
            
         
               44
            
            
               In the first plea, the applicants submit that, by incorrectly attributing liability for the infringement to Parker ITR for the period before 1 January 2002, the Commission infringed the principle of personal liability, engaged in an abuse of procedure and infringed the principle of non-discrimination and the obligation to state reasons.
            
         
               45
            
            
               The second plea alleges incorrect attribution to the applicants of liability for the infringement connected with the unlawful conduct of Mr P., who ran the marine hose business within the undertaking.
            
         
               46
            
            
               By the third plea, the applicants submit that Parker-Hannifin was wrongly considered to be jointly and severally liable for the infringement with Parker ITR.
            
         
               47
            
            
               The fourth plea alleges that the imposition of a fine on Parker ITR for the period before 11 June 1999 infringes Article 25(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) and the principle of non-discrimination and has no statement of reasons.
            
         
               48
            
            
               In the fifth plea, the applicants submit that the fine was wrongly increased on the ground that Parker ITR played the role of leader.
            
         
               49
            
            
               The sixth plea alleges infringement of the principle of individual responsibility and the obligation to state reasons with respect to the increase of the fine imposed on Parker-Hannifin for Parker ITR’s role as leader.
            
         
               50
            
            
               By the seventh plea, the applicants submit that the principle of the protection of legitimate expectations was infringed owing to the application of an incorrect method of calculating the value of sales for the purposes of setting the fine.
            
         
               51
            
            
               The eighth plea alleges infringement of Article 23(2) of Regulation No 1/2003 and infringement of the principle of personal liability and of the obligation to state reasons in the calculation of the ceiling of 10% of turnover.
            
         
               52
            
            
               Lastly, the ninth plea alleges infringement of the principle of the protection of legitimate expectations and of the obligation to state reasons, owing to the Commission’s refusal to apply a reduction of the fine for cooperation.
            
         
               53
            
            
               It is appropriate to examine in turn the first, fourth, fifth, sixth, second, third, seventh, eighth and ninth pleas.
            
         
         The first plea, alleging the incorrect attribution of liability for the infringement to Parker ITR for the period before 1 January 2002
      
      Contested decision
      
               54
            
            
               It is apparent, in essence, from recitals 327 to 329 and 366 to 373 of the contested decision that the Commission took the view that, in accordance with the principle of economic continuity, Parker ITR, formerly ITR Rubber, had to be held liable for the whole of the infringement committed as from 1986, following the internal restructuring which took place within the Saiag group, the transfer of the rubber hose business from ITR to ITR Rubber and then the transfer of that subsidiary to Parker-Hannifin, and that the arguments concerning the principle of personal liability put forward by Parker ITR in the course of the administrative procedure had to be rejected.
            
         
               55
            
            
               The Commission also stated that the fact that it may not have relied in a similar way on the case-law in another case also concerning internal group reorganization was irrelevant and did not impede it in law from reaching a different conclusion in the present case on the basis of a different set of facts.
            
         Arguments of the parties
      
               56
            
            
               The first plea put forward by the applicants consists of three parts.
            
         
               57
            
            
               The applicants maintain, in essence, in support of the first part of their plea, that Parker ITR cannot be held liable for the period before 1 January 2002, in so far as, in their submission, it follows from the case-law that it is for the legal person who ran the undertaking at the time when the infringement was committed to answer for it, even though, when the decision finding the infringement was adopted, a different person had assumed responsibility for operating the undertaking. In fact, Parker ITR became owner of the assets that contributed to the infringement only as from 31 January 2002.
            
         
               58
            
            
               In the applicants’ submission, the Commission erred in treating the transfer of the assets from ITR to ITR Rubber as a type of internal reorganisation of the undertakings that justified the application of the economic succession theory and, therefore, a derogation from the principle of personal responsibility.
            
         
               59
            
            
               The applicants explain that recent case-law confirms that in cases of intra-group transfers of assets, the economic succession theory can apply only if the structural links between the transferor and the transferee of the assets still exist at the time of the adoption of the Commission’s decision finding that there has been an infringement.
            
         
               60
            
            
               In the applicants’ submission, between the time when it was formed, on 27 June 2001, and 1 January 2002, ITR Rubber carried out no economic activity. It was a vehicle formed only in order to effect the transfer of the rubber business to Parker-Hannifin. That object is clear, according to the applicants, from section 7.1.2 of the agreement signed between ITR and Parker-Hannifin.
            
         
               61
            
            
               The second part of the first plea alleges an abuse of procedure.
            
         
               62
            
            
               The applicants maintain, in essence, that the Commission declared Parker ITR liable for the period before 1 January 2002 with the sole aim of circumventing Article 25 of Regulation No 1/2003, which lays down limitation periods the application of which would have precluded ITR and Pirelli from being penalised. Accordingly, that constitutes an abuse of procedure.
            
         
               63
            
            
               The third part of the first plea alleges infringement of the principle of non-discrimination and of the obligation to state reasons.
            
         
               64
            
            
               In support of their argument, the applicants claim in essence that, in the statement of objections the Commission applied the economic continuity theory in the same way to them and to Dunlop Oil & Marine Ltd, which was in a very similar situation. In the contested decision, however, it abandoned the economic continuity theory only with respect to Dunlop Oil & Marine Ltd and not with respect to them, without providing the slightest explanation, although, in each case, the purchaser had acquired the seller’s assets, that is to say, the marine hose business.
            
         
               65
            
            
               The applicants submit, moreover, that in making a finding of infringement for the period before 1 January 2002, first, the Commission departed from its previous practice without providing any logical explanation for having done so; secondly, it failed to answer the arguments which they put forward in their response to the statement of objections; and, thirdly, it did not explain the difference in treatment between them and Dunlop Oil & Marine Ltd.
            
         
               66
            
            
               The Commission disputes those arguments.
            
         
               67
            
            
               In the first place, the Commission submits, in essence, that there was no need to apply the principle of personal liability in the present case, in so far as there was an economic succession within the same group (recitals 370 to 373 of the contested decision). In the Commission’s submission, the case-law distinguishes the consequences of a transfer of assets from those of a transfer of legal entities by providing that, if only assets involved in the infringement are transferred, liability follows those assets only in the exceptional circumstance where the legal person that owned those assets has ceased to exist in law or has ceased all economic activities. Where, on the other hand, a legal entity responsible for the unlawful conduct is sold, that same entity remains liable for its past infringements (Case C-279/98 P Cascades v Commission [2000] ECR I-9693).
            
         
               68
            
            
               In the Commission’s view, it also follows from the case-law (Case C-280/06 ETI and Others [2007] ECR I-10893) that an economic succession depends on the circumstances prevailing at the time of a transfer of assets and that that economic succession is not affected by the subsequent sale of a subsidiary to a new undertaking. The consequences, as regards liability, of that subsequent sale of the subsidiary are governed by the case-law on the breaking up of the undertaking. In the Commission’s submission, the fact that an undertaking liable for an infringement is broken up does not have the consequence that the liability for the various legal entities that previously formed the economic unit ceases to exist. On the contrary, those legal entities can still be held jointly and severally liable, even if some of them belong to a new group at the time of the adoption of the decision finding that there has been an infringement.
            
         
               69
            
            
               In the present case, according to the Commission, only the transfer of ITR’s assets to ITR Rubber, companies between which, as is in any event established, there were structural and economic links when they were both parts of the Saiag group, is relevant with regard to the criterion of economic continuity, ITR’s full and entire liability having been transferred to its subsidiary, ITR Rubber, including that in respect of the period prior to the latter’s formation.
            
         
               70
            
            
               Subsequently, that liability became attached to the legal entity ITR Rubber and, when that legal entity became Parker ITR after its transfer to Parker-Hannifin, it remained liable for the past infringements of ITR Rubber’s former parent company, in accordance with the case-law that a legal entity may be held liable for the infringement committed by the undertaking to which it belonged.
            
         
               71
            
            
               The Commission states that, as regards ITR Rubber’s sale to Parker-Hannifin, there can be no question of a sale of assets to an unrelated undertaking, because the sale covered not only the assets but also an existing legal entity which carried its liability with it.
            
         
               72
            
            
               The sale of the assets in question within the Saiag group, from ITR to ITR Rubber, and the subsequent sale of the latter to a new group, namely the Parker-Hannifin group, must therefore be treated as separate events, as the sale of ITR Rubber cannot undo the previous economic succession.
            
         
               73
            
            
               Furthermore, in the Commission’s submission, the only appropriate time to evaluate the factual situation and to determine whether a transfer of assets took place within a group or between independent undertakings is the time of the transfer itself. The date of adoption of the decision finding that there has been an infringement comes into play only for the purpose of establishing whether a company liable for the infringement has since been dissolved.
            
         
               74
            
            
               The Commission contends, moreover, that the duration of the period during which the structural links continue to exist after the economic succession has taken place is irrelevant for the finding of economic succession; thus, the subsidiary which was sold can still be held jointly and severally liable with the remaining entities of its former economic unit for the period of the infringement up to the sale of the subsidiary.
            
         
               75
            
            
               Furthermore, the Commission disagrees with the applicants’ analysis of the judgment in Case T-161/05 Hoechst v Commission [2009] ECR II-3555, and contends, in essence, that the facts of that case are not comparable with the facts of the present case.
            
         
               76
            
            
               The Commission states in addition that ITR Rubber was formed and wholly owned by its parent company, ITR, and the ultimate parent, the Saiag group, until it was sold to Parker-Hannifin. The fact that for six months (from 27 June 2001 until 1 January 2002) ITR Rubber carried out little economic activity supports the finding that that subsidiary fulfilled the economic role which its parent company intended it to play and that it could not act autonomously, and that assessment is not called into question by what may have happened between 1 January 2002, the date on which the transfer of ITR’s assets to ITR Rubber became effective, and 31 January 2002, the date on which all of the shares in ITR Rubber were acquired by Parker-Hannifin.
            
         
               77
            
            
               The Commission observes in that regard that the contractual prohibition on ITR’s exercising influence on ITR Rubber applied following the transfer of assets (as from 1 January 2002), which means that the purchase agreement could not hinder the existence of an economic unit at the time of the transfer.
            
         
               78
            
            
               The Commission claims, last, that transfers within a group of companies normally take place between a number of legal entities controlled by a single parent company and in that case it is the parent company that is generally held liable if it has exercised a decisive influence over its subsidiaries. An economic succession within a group thus makes it possible to pursue the subsidiary which is the economic successor even if that subsidiary is no longer controlled by the former parent company. That possibility is useful, according to the Commission, for the purposes of applying competition law where the former parent company no longer exists or if it cannot be pursued for other reasons, like the fact that, in the present case, the infringement is time-barred as regards ITR and Saiag.
            
         
               79
            
            
               In the second place, the Commission submits that the case-law accords it a discretion which makes it possible for it to choose to whom to address its decision finding that there has been an infringement both in cases of economic succession and, more generally, as regards parent companies and their subsidiaries; it could therefore decide to address the contested decision only to the economic successor, namely Parker ITR, and not to the predecessor still in existence, namely ITR and/or Saiag.
            
         
               80
            
            
               In response to the second part of the first plea, the Commission disputes the applicants’ allegations that it misused its powers. It explains that even if one reason for addressing the contested decision to Parker ITR was that any sanction against ITR or Saiag would be time-barred, that approach is justified, since, in the Commission’s contention, the same assets, indeed the same undertaking, continued the infringement.
            
         
               81
            
            
               As regards the third part of the first plea, the Commission claims, in particular, in essence, that the statement of objections was based on incorrect facts so far as Dunlop Oil & Marine Ltd was concerned. In effect, it was Unipoly Ltd, the new owner of the assets involved in the infringement, that formed Dunlop Oil & Marine Ltd, and not the seller of those assets, [confidential], which distinguishes the situation of that undertaking from the situation of the applicants, in whose case what happened was the sale of a legal entity and not just the sale of assets.
            
         
               82
            
            
               As for the complaint alleging infringement of the obligation to state reasons, the Commission contends, in essence, that it is a mere reformulation of the other complaints put forward in support of this plea.
            
         Findings of the Court
      
               83
            
            
               It must be borne in mind that European Union competition law refers to the activities of undertakings (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 59).
            
         
               84
            
            
               In competition law the term ‘undertaking’ must be understood as designating an economic unit – that is to say a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis – even if in law that unit consists of several persons, natural or legal – (see, to that effect, Case 170/83 Hydrotherm [1984] ECR 2999, paragraph 11; T-66/99 Minoan Lines v Commission [2003] ECR II-5515, paragraph 122; and Case T-325/01 DaimlerChrysler v Commission [2005] ECR II-3319, paragraph 85).
            
         
               85
            
            
               Furthermore, under the principle of personal responsibility, a punishable act can be attributed only to its author. In addition, under the principle of the personal nature of penalties, no punishment may be imposed other than on the guilty party. Those principles, which constitute fundamental guarantees deriving from criminal law, therefore preclude a natural or legal person who is not the author of an offence from being held responsible for it (see, to that effect, Opinion of Advocate General Cosmas in Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4130, point 74; Opinion of Advocate General Colomer in Aalborg Portland and Others v Commission, paragraph 83 above, ECR I-133, points 63 and 64; Opinion of Advocate General Bot in Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg [2011] ECR I-2239, point 181; and Opinion of Advocate General Bot in Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, point 162).
            
         
               86
            
            
               According to settled case-law, those principles apply to European Union competition law. The Court of Justice has held that, given the nature of the infringement in question and the nature and degree of severity of the ensuing penalties, responsibility for committing an infringement of the competition rules is personal in nature (Commission v Anic Partecipazioni, paragraph 85 above, paragraph 78, and Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237, paragraph 77).
            
         
               87
            
            
               It is consequently for the natural or legal person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, the operation of the undertaking was no longer his responsibility (see ThyssenKrupp Nirosta v Commission, paragraph 85 above, paragraph 143 and the case-law cited).
            
         
               88
            
            
               Therefore, it is apparent from the case-law of the Court that responsibility for the undertaking’s infringement – or that of the entities of which it consists – follows the legal or natural person managing the undertaking in question when the infringement was committed, even though the assets and personnel which contributed to the commission of the infringement have been transferred to a third person after the period of the infringement (see, to that effect, Case C-297/98 P SCA Holding v Commission [2000] ECR I-10101, paragraphs 25 and 27).
            
         
               89
            
            
               A natural or legal person who has not committed the infringement may however be penalised for that infringement where the natural or legal person who has committed the infringement has ceased to exist, either in law or economically (see, to that effect, ETI and Others, paragraph 68 above, paragraph 40, and ThyssenKrupp Nirosta v Commission, paragraph 85 above, paragraph 144), in order to prevent an undertaking from being able to escape penalties by simply changing its identity through restructurings, sales or other legal or organisational changes (see, to that effect, ETI and Others, paragraph 68 above, paragraph 41 and the case-law cited). This is a question of the criterion of economic continuity.
            
         
               90
            
            
               Thus, it is apparent from settled case-law that a change in the legal form and name of an undertaking does not have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor when, from an economic point of view, the two undertakings are identical (Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 9; Aalborg Portland and Others v Commission, paragraph 83 above, paragraphs 356 to 359; and ETI and Others, paragraph 68 above, paragraph 42).
            
         
               91
            
            
               Furthermore, the fact that a legal person continues to exist as a legal entity does not exclude the possibility that, with reference to European Union competition law, there may be a transfer of part of the activities of that legal person to another which becomes responsible for the acts of the former (Aalborg Portland and Others v Commission, paragraph 83 above, paragraphs 356 to 359; ETI and Others, paragraph 68 above, paragraph 48; and Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-3435, paragraph 132).
            
         
               92
            
            
               Applying penalties in this way is permissible where those legal persons have been under the control of the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (Aalborg Portland and Others v Commission, paragraph 83 above, paragraphs 356 to 359, and ETI and Others, paragraph 68 above, paragraph 49).
            
         
               93
            
            
               By contrast, the Court of Justice has held, in the case of two existing and functioning undertakings one of which had transferred part of its activities to the other and where there was no structural link between them, that there can be economic continuity only where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed (see, to that effect, Commission v Anic Partecipazioni, paragraph 85 above, paragraph 145, and Aalborg Portland and Others v Commission, paragraph 83 above, paragraph 359).
            
         
               94
            
            
               Accordingly, the criterion of economic continuity makes it possible, in exceptional circumstances which are strictly defined by the case-law, to ensure that the principle of personal responsibility of the author of the infringement is effective and to penalise a legal person which is not the legal person which committed that infringement but with which it shares structural links.
            
         
               95
            
            
               In accordance with the criterion of economic continuity, the Commission is therefore allowed to penalise a legal person other than the person who committed the infringement, notwithstanding any legal structure intended, within one and the same undertaking, artificially to prevent the penalising of infringements of competition law which have been committed by one or more of the legal persons of which it consists.
            
         
               96
            
            
               The criterion of economic continuity is not however intended to allow the Commission to hold liable for an infringement an undertaking other than that which, as the case may be through the legal persons of which it consists, has committed that infringement (see, to that effect, ThyssenKrupp Nirosta v Commission, paragraph 85 above, paragraph 145), unless those two undertakings have structural links which link them economically and organisationally (see, to that effect, Aalborg Portland and Others v Commission, paragraph 83 above, paragraph 359, and ETI and Others, paragraph 68 above, paragraph 49) or the legal person which committed the infringement has been transferred to a third party abusively, that is to say under conditions other than market conditions, with the intention of avoiding the antitrust law penalties (Opinion of Advocate General Kokott in ETI and Others, paragraph 68 above, points 82 and 83).
            
         
               97
            
            
               By contrast, an undertaking which has, under market conditions, transferred the legal person which committed the infringement to a third party with which it has no structural links, may, subject to the rules relating to limitation, still be penalised in accordance with the principle of personal responsibility for the period of the infringement prior to the transfer, even though it is no longer active in the commercial sector which was the subject-matter of that infringement.
            
         
               98
            
            
               In other words, where rules of law, such as those governing limitation, prevent an undertaking from being penalised for having committed an infringement of competition law, or where the undertaking which has transferred the legal person which committed the infringement to a third party has ceased to exist, the criterion of economic continuity is not intended to enable another undertaking to be found and rendered responsible retroactively for the acts committed by the first undertaking, unless the undertakings have structural links which link them economically and organisationally (see, to that effect, Opinion of Advocate General Colomer in Aalborg Portland and Others v Commission, paragraph 85 above, point 72) or the transfer of the legal person which committed the infringement was an abuse (see paragraph 96 above).
            
         
               99
            
            
               It is immaterial, in that regard, whether there is a transfer of assets or a transfer of a legal person to that third party and the Commission’s argument on this point must be rejected.
            
         
               100
            
            
               It has been held that the principle of personal liability was not called into question by the criterion of economic continuity in a case where an undertaking had transferred a part of its business involved in the cartel to an independent third party by means of the transfer of a subsidiary set up for the purposes of that transfer and there was no structural link between the initial operator and the new operator, a situation which justified a penalty on the transferor undertaking for the period of the infringement prior to the transfer and a penalty on the transferee undertaking for the period of the infringement subsequent thereto (see, to that effect, Hoechst v Commission, paragraph 75 above, paragraphs 28 and 61).
            
         
               101
            
            
               It follows that, in accordance with the principle of personal responsibility, the legal person transferred may be penalised, as from the date when it was set up, for the period of the infringement during which it itself participated in the infringement (see, to that effect, Hoechst v Commission, paragraph 75 above, paragraphs 28, 61, 66 and 67) inasmuch as, as from that time, it may be individually held responsible for that infringement (see, to that effect, 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, paragraphs 81 and 82).
            
         
               102
            
            
               It must be added that the effectiveness of the penalty may be undermined in a case of a subsequent repeated infringement if an infringement committed by the transferor undertaking is not found and, as appropriate, penalised.
            
         
               103
            
            
               In the present case, it is necessary first of all to bear in mind the following facts.
            
         
               104
            
            
               First, the marine oil and gas hose business now owned by Parker ITR was established in 1966 by Pirelli Treg SpA, whose business was taken over in December 1990 by ITR, which was acquired by Saiag in 1993.
            
         
               105
            
            
               Secondly, Saiag created a subsidiary, ITR Rubber, on 27 June 2001 after opening negotiations with Parker-Hannifin concerning the possible sale of its marine hose business, to which it transferred, on 19 December 2001, its rubber hose business, including the marine hose business.
            
         
               106
            
            
               The transfer of the rubber hose business to ITR Rubber took effect on 1 January 2002 and, on 31 January 2002, the subsidiary ITR Rubber – renamed Parker ITR a few months later – was acquired by Parker-Hannifin.
            
         
               107
            
            
               Furthermore, it is apparent from recital 370 of the contested decision that, from December 1990 to 27 June 2001, the date on which ITR Rubber was created by Saiag, it was ITR which participated in the cartel and therefore committed the infringement penalised by that decision.
            
         
               108
            
            
               It is not moreover disputed that ITR continued to carry on Saiag’s rubber hose business, and in particular the marine hose business, until the time when its assets were transferred to ITR Rubber on 19 December 2001, that transfer having taken effect as of 1 January 2002.
            
         
               109
            
            
               Furthermore, it is common ground that the infringement continued to be committed from 27 June to 31 December 2001.
            
         
               110
            
            
               It follows that it was also ITR which committed the infringement between 27 June 2001 and 31 December 2001.
            
         
               111
            
            
               In accordance with the principle of personal responsibility, it is therefore Saiag and ITR which should have been penalised for the infringement committed – at the very least – between December 1990 and 31 December 2001.
            
         
               112
            
            
               It is also common ground that the Commission did not penalise ITR and Saiag because it took the view, according to the information which it provided in that regard during the proceedings, that the infringement was time-barred as regards those undertakings.
            
         
               113
            
            
               Furthermore, the Commission stated at the hearing that it was to that extent that, in order to penalise the infringement committed by ITR from December 1990 to December 2001 and, before that, by Pirelli Treg from April 1986 to December 1990, it decided to attribute to Parker ITR, formerly ITR Rubber, responsibility for the entire duration of the infringement. It takes the view that it is possible to rely on the criterion of economic continuity in such a case in order to ensure that penalties in competition law are effective.
            
         
               114
            
            
               It must therefore be examined whether the conditions for applying the criterion of economic continuity were fulfilled in the present case, as claimed by the Commission.
            
         
               115
            
            
               It must be stated that, first, from 27 June 2001 to 31 January 2002, ITR Rubber was a wholly-owned subsidiary of ITR and, secondly, that the transfer of the rubber hose business to ITR Rubber took effect only as of 1 January 2002, there being nothing in the Commission’s file to show that ITR Rubber had any business activities, and, in particular, business activities in connection with marine hoses, prior to that date. As ITR sold all the shares in ITR Rubber to Parker-Hannifin, by an agreement concluded on 5 December 2001 and executed by the transfer of all the shares to the purchaser on 31 January 2002, it is common ground that the incorporation of the rubber hoses business into a subsidiary carried out by ITR was clearly part of an objective of selling that subsidiary’s shares to a third undertaking (see, to that effect, Hoechst v Commission, paragraph 75 above, paragraph 61).
            
         
               116
            
            
               In those circumstances, it is for the legal person managing the undertaking in question when the infringement was committed, that is to say ITR and its parent company Saiag, to answer for that infringement, even if, at the date of the decision finding the infringement, the operation of the marine hose business was the responsibility of another undertaking, in the present case Parker-Hannifin. The principle of personal liability cannot be called into question by the principle of economic continuity in cases where, as in the present case, an undertaking involved in the cartel, namely Saiag and its subsidiary ITR, transfers a part of its business to an independent third party and there is no structural link between the transferor and the transferee – that is to say, in the present case, between Saiag or ITR and Parker-Hannifin.
            
         
               117
            
            
               It must also be pointed out that the Commission concedes that it has no evidence to suggest that the sale took place abusively with the intention of allowing Saiag and ITR to avoid responsibility. Moreover, the Commission did not put that argument forward in the contested decision.
            
         
               118
            
            
               Consequently, it was for the Commission to find that Saiag and ITR were responsible for the infringement until 1 January 2002 and then, as the case may be, to find that that infringement was time-barred, as the settled case-law permits it to do (see, to that effect, Joined Cases T-22/02 and T-23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II-4065, paragraphs 60 and 61, and Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II-4225, paragraph 72).
            
         
               119
            
            
               In such circumstances, the Commission could not, by contrast, hold ITR Rubber responsible for the period prior to 1 January 2002, the date on which the assets involved in the cartel were transferred to it.
            
         
               120
            
            
               That is moreover the approach used by the Commission itself in the case which gave rise to the judgment in Hoechst v Commission, paragraph 75 above, pursuant to the principle of personal responsibility, an approach which was approved by the General Court.
            
         
               121
            
            
               Furthermore, since it is necessary to reject the premiss of the Commission’s reasoning concerning the application of the criterion of economic continuity only to the transfer of ITR’s assets to ITR Rubber (and not to the transfer of the subsidiary ITR Rubber to Parker-Hannifin), ITR and Saiag’s responsibility cannot have been transferred to ITR Rubber pursuant to that criterion. It follows that the Court cannot uphold the Commission’s argument that the responsibility attached, in accordance with the criterion of economic continuity, to the subsidiary formed with a view to its purchase by Parker-Hannifin was therefore transferred to the latter on that occasion.
            
         
               122
            
            
               It is also necessary to reject the Commission’s argument that, in essence, it has, in any event, a discretion to choose the person responsible for the infringement both in cases of economic continuity and, more generally, as regards parent companies and their subsidiaries, and may thus penalise ITR Rubber for all of ITR and Saiag’s past infringements.
            
         
               123
            
            
               First, it is indeed apparent from the case-law that, in certain circumstances, it is possible to attribute the unlawful conduct of a subsidiary to its parent company on account of the control which the parent company has over the subsidiary (Case T-309/94 KNP BT v Commission [1998] ECR II-1007, paragraphs 41, 42, 45, 47 and 48, confirmed by the judgment in Case C-248/98 P KNP BT v Commission [2000] ECR I-9641, paragraph 73).
            
         
               124
            
            
               However, that case-law cannot apply here since, in the present case, the Commission intends to attribute to a subsidiary, ITR Rubber, the responsibility of its parent company, Saiag, for the unlawful conduct of another subsidiary of Saiag’s, namely ITR.
            
         
               125
            
            
               Secondly, it has also been held that the Commission may choose to penalise either the subsidiary that participated in the infringement or the parent company that controlled it during that period (Erste Group Bank and Others v Commission, paragraph 101 above, paragraphs 81 to 84, and Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169, paragraph 331) or both of them jointly and severally (judgment of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraphs 52 to 82, and Case T-384/06 IBP and International Building Products France v Commission [2011] ECR II-1177, paragraph 13).
            
         
               126
            
            
               It is however apparent from that case-law that, although the subsidiary may be penalised instead of the parent company, it is to the extent that it itself participated in the infringement and, therefore, for the duration of its participation, which in particular precludes it from being held retroactively responsible for an infringement committed by its parent company before it was formed.
            
         
               127
            
            
               The retroactive attribution of the responsibility for an infringement to a legal person other than that which committed it is possible only in the context of the application of the criterion of economic continuity, the application of which has however been excluded in the present case (see paragraphs 114 to 119 above).
            
         
               128
            
            
               As the transfer of the assets involved in the cartel from ITR to ITR Rubber took effect on 1 January 2002 and no evidence of ITR Rubber’s involvement has been put forward by the Commission in respect of the period prior to 1 January 2002, it must be held that ITR Rubber personally committed the infringement from 1 January 2002 to 31 January 2002, the date on which all of the shares in ITR Rubber were acquired by Parker-Hannifin.
            
         
               129
            
            
               It also follows that, subject to the examination of the second and third pleas, Parker-Hannifin cannot be found responsible for the period prior to 31 January 2002, the date on which it acquired all the shares in ITR Rubber (now Parker ITR). The contested decision, inasmuch as it correctly finds Parker-Hannifin jointly and severally liable as from 31 January 2002, must therefore be upheld in that regard and subject to that reservation.
            
         
               130
            
            
               Without it being necessary to examine the second and third parts of the first plea, the first part of the first plea must therefore be upheld, inasmuch as Parker ITR cannot be found responsible for the period of the infringement prior to 1 January 2002.
            
         
         The fourth plea, alleging that the imposition of a fine on Parker ITR for the period before 11 June 1999 is incorrect
      
      The contested decision
      
               131
            
            
               In the contested decision, in recitals 148 to 187 and 289 to 307, the Commission refers to a series of facts which, in its view, make it possible to distinguish three periods in the cartel’s existence: an initial period of ‘fully-fledged’ activity from 1986 to May 1997, a period of limited activity, stretching, depending on the cartel members, from May 1997 to June 1999 or June 2000, and, lastly, a further period of ‘fully-fledged’ activity from June 1999 or June 2000, depending on the cartel members, until May 2007. It takes the view, in essence, that, since it has been established that there were contacts between certain of the participants in the cartel, contacts which inter alia had the objective of reinstating the cartel, the infringement must be regarded as continuous, or at the very least repeated, but that there is no need to impose a fine for the cartel’s period of limited activity.
            
         Arguments of the parties
      
               132
            
            
               By their fourth plea, the applicants submit that the imposition of a fine on Parker ITR for the period before 11 June 1999 infringes, first, Article 25(2) of Regulation No 1/2003, since the infringement cannot be held to be a continuing or repeated infringement, and, secondly, the principle of non-discrimination. They take the view that the Commission also infringed the obligation to state reasons.
            
         
               133
            
            
               The Commission disputes those arguments.
            
         Findings of the Court
      
               134
            
            
               The fourth plea, which seeks a finding from the General Court that the limitation period has expired in respect of a period of infringement prior to 11 June 1999, is logically in the alternative to the first plea, which implies that it should be examined only if the first plea has been rejected.
            
         
               135
            
            
               As the first plea has been upheld, there is therefore no need to examine the fourth plea.
            
         
         The fifth plea, alleging that the fine was wrongly increased on the ground that Parker ITR played the role of leader
      
      The contested decision
      
               136
            
            
               It is apparent from recitals 457 to 463 of the contested decision that, having regard to the involvement in the cartel of Mr P., who played the role of leader as attested by various items of evidence, the Commission decided to increase the basic amounts of the fine by virtue of aggravating circumstances and to reject Parker ITR and Parker-Hannifin’s arguments concerning the attribution of liability for the infringement to Mr P.
            
         Arguments of the parties
      
               137
            
            
               In support of their fifth plea, the applicants submit it was wrong to increase the fine on the ground that Parker ITR played the role of leader in respect of the period from 11 June 1999 to 30 September 2001.
            
         
               138
            
            
               The Commission disputes that argument.
            
         Findings of the Court
      
               139
            
            
               Since the first plea has been upheld, the role of leader of the cartel cannot be attributed to Parker ITR in respect of the period from 11 June 1999 to 30 September 2001.
            
         
               140
            
            
               Consequently, the fifth plea must be upheld, inasmuch as it alleges that the fine imposed was wrongly increased in respect of conduct which cannot be attributed to the applicants.
            
         
         The sixth plea, alleging infringement of the principle of individual responsibility and the obligation to state reasons with respect to the increase of the fine imposed on Parker-Hannifin for Parker ITR’s role as leader
      
      Arguments of the parties
      
               141
            
            
               The sixth plea put forward by the applicants alleges infringement of the principle of individual responsibility and the obligation to state reasons with respect to the increase of the fine imposed on Parker-Hannifin for Parker ITR’s role as leader.
            
         
               142
            
            
               The applicants submit in that regard that the Commission did not find Parker-Hannifin liable for the period of the infringement before 31 January 2002, but it took account of the role as leader which ITR is alleged to have played between June 1999 and September 2001 in order to increase the fine imposed on Parker ITR and to increase the part of the fine for which Parker-Hannifin is held jointly and severally liable. In fact the Commission holds Parker-Hannifin liable for events that took place before it acquired Parker ITR on 31 January 2002, in infringement of the principle of personal responsibility.
            
         
               143
            
            
               The applicants also submit in essence that the reasoning in the contested decision is contradictory and insufficient.
            
         
               144
            
            
               The Commission disputes those arguments.
            
         Findings of the Court
      
               145
            
            
               Since the first plea has been upheld, Parker-Hannifin cannot be found jointly and severally liable, as regards the role of its subsidiary Parker ITR as leader, for the period of the infringement from 11 June 1999 to 30 September 2001, which cannot be attributed to Parker ITR.
            
         
               146
            
            
               Accordingly, the sixth plea must be upheld.
            
         
         The second plea, alleging incorrect attribution to the applicants of liability for the infringement related to the unlawful conduct of Mr P., manager of the Oil & Gas unit
      
      The contested decision
      
               147
            
            
               It is apparent in essence from recitals 374 to 381 of the contested decision that the Commission rejected the arguments put forward by the applicants that it was necessary to take into account, first, the personal liability of Mr P., the manager of ITR Rubber’s Oil & Gas unit both before ITR Rubber was acquired by Parker-Hannifin and after that acquisition, who acted without the knowledge of his employer, by putting in place a vast mechanism with the intention of participating in the cartel for his personal benefit and that of the companies with which he was linked, and, secondly, the fact that those actions were carried out to the detriment of and in contradiction with the internal policy of the undertaking, causing it significant damage and not bringing it any advantage.
            
         Arguments of the parties
      
               148
            
            
               The applicants dispute, in essence, that the conduct of Mr P., the manager of ITR Rubber’s (now Parker ITR) Oil & Gas unit is attributable to them, on account of the fact, first, that he hid the truth, by devising a fraudulent scheme designed to allow him, and various companies which he controlled or to which he was linked, to benefit from the illegal gains arising from the cartel, secondly, that he opposed by all means Parker-Hannifin’s intervention in the commercial management of the marine hose business which he ran in complete autonomy, and, thirdly and lastly, that they were the first ones harmed by the actions of Mr P., who acted only for his personal benefit and for that of his companies, and infringed Parker-Hannifin’s ethical rules. They submit that, following the example of United States case-law, an undertaking should not be held liable for the conduct of its employee if that employee’s illegal activities were carried out with the intention of benefiting persons other than his employer.
            
         
               149
            
            
               Furthermore, the applicants claim that they did not enter into any agreement with the cartel members during the period when Mr P. was employed by the undertaking and they dispute that they concealed the cartel from the Commission when they had suspicions in that regard, as those suspicions were not sufficient, in their opinion, to justify measures being taken with a view, in particular, to the submission of a leniency application.
            
         
               150
            
            
               The Commission disputes those claims.
            
         Findings of the Court
      
               151
            
            
               It must be borne in mind that, according to settled case-law, for an infringement of Article 85 EC to be attributed to an undertaking it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned by that infringement; action by a person who is authorised to act on behalf of the undertaking suffices (see, as regards the EC Treaty, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 97, and Case T-15/99 Brugg Rohrsysteme v Commission [2002] ECR II-1613, paragraph 58).
            
         
               152
            
            
               It must be pointed out that Mr P. worked continuously from 1981 to 2006 successively for Pirelli Treg, Saiag (ITR) and Parker ITR. Furthermore, after his alleged resignation, on 9 June 2006, Parker ITR entered into a consultancy agreement with him in order to ensure the continuation of the marine hose business.
            
         
               153
            
            
               Mr P.’s involvement in the cartel and also the role of leader which he played in the cartel, which have moreover not been formally disputed by the applicants, are detailed at length in recitals 94, 122 (table 9), 144, 145, 151, 154, 155, 156, 158, 163, 172, 177, 185, 189 (table 10), 190, 196, 241, 302, 349, 379, 383, 384, 386, 459, and 461 of the contested decision.
            
         
               154
            
            
               Furthermore, the applicants conceded, at the hearing, that Mr P. was authorised to act on behalf of the undertaking, as was pointed out by the Commission in recital 383 of the contested decision. It is apparent from that recital that the applicants submitted ‘a copy of a power to act … which shows that he was authorised to sign a broad range of business transactions’, which shows that, although it is true that Mr P. enjoyed a broad discretion in connection with his activities, that was because that power had been expressly conferred on him by the applicants.
            
         
               155
            
            
               The applicants’ liability is therefore apparent, without there being any need to ascertain whether Mr P. acted without their knowledge.
            
         
               156
            
            
               The applicants’ argument that they did not themselves enter into any agreement with the other members of the cartel is therefore also ineffective, since they were legally bound by Mr P.
            
         
               157
            
            
               The same is true of the claims relating to the infringement of the internal ethical rules of the Parker group and of those concerning the fact that Mr P. acted with the aim of defrauding that group. The fact remains that there appears to be no basis for those claims, which are moreover belied by the fact that the Parker group never lodged a complaint or took any steps against its former employee.
            
         
               158
            
            
               Lastly, as regards the damage allegedly caused to Parker-Hannifin, the Commission is correct in stating that, in participating in the cartel, the undertaking, contrary to what it claims, derived benefits resulting, in particular, from the price fixing and the market sharing between the various members of the cartel, which it could not have attained if there had not been an agreement between them.
            
         
               159
            
            
               The second plea must therefore be rejected.
            
         
         The third plea, alleging that Parker-Hannifin was wrongly considered to be jointly and severally liable for the infringement with Parker ITR
      
      The contested decision
      
               160
            
            
               It is apparent in essence from recitals 382 to 389 of the contested decision that the Commission found that it could be presumed that Parker-Hannifin exercised a decisive influence over Parker ITR since the parent company held 100% of the capital in its subsidiary and there were also factual indicia that Parker-Hannifin had exercised control over Parker ITR, in particular a power to act given to Mr P. which shows that he was authorised to sign a broad range of business transactions.
            
         
               161
            
            
               The Commission also rejected the arguments put forward by the applicants in response to the statement of objections.
            
         
               162
            
            
               The Commission therefore first rejected an argument according to which it was sufficient to show that Parker-Hannifin had not exercised a decisive influence over Parker ITR’s marine hoses business alone, and that it was not necessary to take account of the situation with regard to other business areas of that subsidiary. It took the view that it is apparent from the case-law that it refers to the conduct of the subsidiary as a whole.
            
         
               163
            
            
               Secondly, the Commission found that the documents which the applicants refer to in order to prove Parker ITR’s autonomy do not demonstrate that the subsidiary acted fully independently from its parent company, but merely possibly showed divergences of views and problems of cooperation. However, according to the Commission, the exercise of a decisive influence over the commercial policy of a subsidiary does not require day-to-day management of the subsidiary’s operation.
            
         
               164
            
            
               Thirdly, the Commission rejected the applicants’ argument that the cartel was concealed from the parent company and found in particular that it is apparent from the case-law that the Commission is not required to show that an undertaking’s senior management was aware of an infringement, as long as the individual contributing to the infringement was authorised to act for the undertaking.
            
         
               165
            
            
               The Commission concluded by finding that, in addition to holding Parker ITR liable for the infringement committed as of 1986, Parker-Hannifin and Parker ITR should be held jointly and severally liable for the conduct of Parker ITR between 31 January 2002 and 2 May 2007.
            
         Arguments of the parties
      
               166
            
            
               In the first place, the applicants maintain, in essence, that Parker-Hannifin did not exercise the slightest influence – and, a fortiori, exercised no decisive influence – over Parker ITR’s Oil and Gas unit during Mr P.’s tenure as the manager of that unit. In support of that argument, they claim that Mr P. systematically refused to comply with Parker-Hannifin’s instructions and commercial policy, successfully rebuffed Parker-Hannifin’s attempts to intervene in the operation of the marine hoses business and deliberately ignored the Parker group’s code of ethics. They maintain that the Oil and Gas unit, which Mr P. managed, therefore acted autonomously on the market. They submit that they have thus rebutted the presumption of decisive influence.
            
         
               167
            
            
               Moreover, in the applicants’ submission, apart from some alleged indicia, the Commission’s file contains no evidence that Parker-Hannifin exercised a decisive influence over Parker ITR during the period from 31 January 2002 to 9 June 2006.
            
         
               168
            
            
               In the second place, the applicants submit in essence that they are required to rebut the presumption of decisive influence only with respect to the products affected by the cartel, namely those coming within the remit of the Oil & Gas unit. It would therefore be manifestly disproportionate and contrary to the rationale of the presumption if the applicants were required to show that Parker-Hannifin did not exercise a decisive influence over all the activities in which Parker ITR was involved. A parent company may decide to exercise a decisive influence over certain of its subsidiaries’ spheres of activity and to leave them complete independence with respect to other spheres. It must therefore be considered in the present case that the evidence in the file shows that Parker-Hannifin and Parker ITR did not constitute a single undertaking for the purposes of Article 81 EC with respect to the marine oil and gas hoses activity.
            
         
               169
            
            
               In the third place, the applicants dispute the Commission’s assertion that the exercise of decisive influence does not require involvement in the day-to-day management of the subsidiary.
            
         
               170
            
            
               In the fourth place, the applicants submit in essence that they do not have to disprove that Parker-Hannifin imposed objectives and policies which influenced the performance and coherence of the group and disciplined any behaviour that might depart from those objectives and policies, as maintained by the Commission in recital 386 of the contested decision.
            
         
               171
            
            
               In the fifth place and lastly, the applicants dispute in essence the scope and the interpretation given by the Commission to certain items of evidence which it referred to in recitals 383 to 386 of the contested decision to show that Parker-Hannifin intended to exercise control over its subsidiary.
            
         
               172
            
            
               The Commission disputes those claims.
            
         Findings of the Court
      
               173
            
            
               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 (Akzo Nobel and Others v Commission, paragraph 86 above, paragraph 58 and the case-law cited).
            
         
               174
            
            
               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. 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 86 above, paragraph 59 and the case-law cited).
            
         
               175
            
            
               In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 86 above, paragraph 60 and the case-law cited).
            
         
               176
            
            
               In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for the 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 86 above, paragraph 61 and the case-law cited).
            
         
               177
            
            
               Furthermore, the conduct of the subsidiary on the market cannot be the only factor which enables the liability of the parent company to be established, but is only one of the signs of the existence of an economic unit (Akzo Nobel and Others v Commission, paragraph 86 above, paragraph 73).
            
         
               178
            
            
               Consequently, in order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (Akzo Nobel and Others v Commission, paragraph 86 above, paragraph 74).
            
         
               179
            
            
               In the present case, it is common ground that Parker-Hannifin had, through its various subsidiaries, a 100% shareholding in ITR Rubber (now Parker ITR). As the parent company, it is therefore presumed to have exercised a decisive influence over the conduct of its subsidiary.
            
         
               180
            
            
               It is against that background that the items of evidence adduced by the applicants for the purposes of rebutting that presumption must be analysed.
            
         
               181
            
            
               In connection with that analysis, it must be borne in mind at the outset that it is apparent from Akzo Nobel and Others v Commission, paragraph 86 above, that independence must be established for the whole subsidiary and not merely a business unit active on the market which is the subject-matter of the cartel, since the objective of showing that the subsidiary’s conduct is independent is ultimately to establish that the parent company and the subsidiary do not form an economic unit, which may provide a basis for not finding the parent company liable for the infringement committed by its subsidiary (see, to that effect, Akzo Nobel and Others v Commission, paragraph 86 above, paragraphs 55, 56 and 59).
            
         
               182
            
            
               The applicants’ argument in that regard must therefore be rejected.
            
         
               183
            
            
               Furthermore, the applicants submit that the parties concerned are not required to adduce direct and irrefutable evidence of the subsidiary’s autonomy on the market, but only to provide evidence capable of demonstrating that autonomy.
            
         
               184
            
            
               Since it is required, according to the case-law of the Court referred to above (see paragraph 176 above), for ‘sufficient evidence to show that [the] subsidiary acts independently on the market’ to be adduced, the applicants are not required to adduce direct and irrefutable evidence of the subsidiary’s independent conduct on the market, but, failing that, they must submit a body of precise and consistent evidence showing that the subsidiary acted independently, despite the parent company’s 100% shareholding in it.
            
         
               185
            
            
               Furthermore, in support of their argument that the parent company did not exercise the slightest influence or, a fortiori, exercised no decisive influence over its subsidiary, the applicants submit that Mr P. systematically refused to comply with Parker-Hannifin’s instructions and commercial policy, successfully rebuffed Parker-Hannifin’s attempts to intervene in the operation of the marine hoses business, which the Commission admits in the contested decision (recital 384 of the contested decision) and that he also deliberately ignored the Parker group’s code of ethics, which prohibited its employees from taking part in collusive activities.
            
         
               186
            
            
               The applicants thus take the view that they have proved that Parker-Hannifin was not involved in the day-to-day management of Parker ITR’s Oil & Gas unit.
            
         
               187
            
            
               It must however be pointed out that the applicants claim simultaneously, in essence, that Parker-Hannifin did not exercise a decisive influence over Parker ITR, but that it did not cease to intervene in the management of that company, and that it is only on account of Mr P.’s machinations that it did not succeed in doing so.
            
         
               188
            
            
               The applicants do not adduce any evidence capable of establishing the reasons why Parker-Hannifin was legitimately prevented from exercising a decisive influence over Parker ITR for many years, as it claims.
            
         
               189
            
            
               It must be borne in mind that Parker-Hannifin is the ultimate parent company of a global group, which, at the beginning of 2002, acquired a business which was new for it, namely ITR Rubber’s (now Parker ITR) rubber hoses business.
            
         
               190
            
            
               The applicants claim that Mr P. prevented the Parker group from participating in Parker ITR’s activities, with the result that the ultimate parent company of that group was totally unaware of what was happening with regard to those activities for more than four years until that person’s departure in 2006.
            
         
               191
            
            
               In addition to the scarcely credible nature of those claims, the fact remains that there was nothing legally and economically to prevent Parker-Hannifin from exercising its control over Parker ITR.
            
         
               192
            
            
               Furthermore, there was nothing to prevent Parker-Hannifin from dismissing Mr P. or terminating his contract, as he was only one of its employees, if the applicants took the view, as they now claim, that he constituted a restriction on Parker-Hannifin’s control over Parker ITR.
            
         
               193
            
            
               What is more, the evidence which must be adduced by the parent company must be sufficient to show that the subsidiary was objectively independent having regard to the economic, organisational and legal links between them. The subsidiary’s intentions in that regard, even if proved, are irrelevant. To hold otherwise would be tantamount to supporting the parent company’s inertia and negligence in managing subsidiaries which are engaged in unlawful conduct.
            
         
               194
            
            
               The applicants do not therefore put forward any evidence capable of rebutting either the presumption of decisive influence of the parent company over the subsidiary or the additional evidence used by the Commission.
            
         
               195
            
            
               Consequently, the third plea must be rejected.
            
         
         The seventh plea, alleging infringement of the principle of the protection of legitimate expectations owing to the application of an incorrect method of calculating the value of sales for the purposes of setting the fine
      
      The contested decision
      
               196
            
            
               It is apparent in essence from recitals 422 to 428 of the contested decision that the Commission, first, used, for the purpose of ascertaining the sales concerned, the average sales of the last three years before the end of the infringement in order to take account of the volatility of annual sales and, secondly, considered that the EEA market was composed of all sales invoiced to a purchaser located in the EEA, stating that it considered that it was the most reliable criterion to determine where the competition affected by the infringement took place, and not the place of end use, which may actually be outside of the EEA.
            
         
               197
            
            
               Furthermore, the Commission points out that its assessment is confirmed by the fact that the majority of companies, in their replies to the Commission’s requests for information, made a geographic allocation of customers or turnover on the basis of the place of invoice, and not of the place of delivery or end use of the goods.
            
         
               198
            
            
               Lastly, the Commission states that such an assessment does not conflict with the Guidelines, as they do not set out the criteria according to which sales are considered to be within the EEA.
            
         Arguments of the parties
      
               199
            
            
               The applicants maintain, in essence, that the Commission infringed the principle of the protection of legitimate expectations in taking into account, for the purposes of calculating aggregate sales within the EEA, not only sales of marine hoses delivered within the EEA but also sales of products invoiced to companies established within the EEA, in order, they claim, to increase artificially the amount of the fine.
            
         
               200
            
            
               The applicants maintain that only sales of goods delivered within the EEA reflect the competitive impact of potentially illegal behaviour in the EEA. The sale of goods delivered outside the EEA cannot ‘affect trade between Member States’ or ‘between Contracting Parties’ within the meaning of Article 81 EC and Article 53 of the EEA Agreement; trade in the EEA is affected only where the goods affected by the cartel are delivered within the EEA territory, regardless of the location of the legal entity to which those sales are invoiced.
            
         
               201
            
            
               The applicants also refer, in that regard to paragraph 197 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1) (‘the Notice on concentrations’), according to which ‘the delivery is in general the characteristic action for the sale of goods …’, which confirms their analysis of point 18 of the Guidelines.
            
         
               202
            
            
               Furthermore the applicants contend that recital 55 of the contested decision – in which the Commission states that ‘[r]eplacement sales [that is to say, sales to end users] account for a greater proportion of the worldwide marine hoses market than sales of new products [that is to say, sales to OEM manufacturers]’ – contradicts recital 427 of the contested decision – according to which ‘a considerable amount of marine hoses is purchased by OEM manufacturers’.
            
         
               203
            
            
               In addition, the applicants maintain in essence that the Commission cannot contend that the criterion of invoicing is a common criterion used by businesses themselves, just because many of the undertakings concerned have identified their internal geographic allocation of turnover on the basis of the place of invoicing and not the place of delivery, and even though Parker-Hannifin drew its attention to the fact that the calculation of those figures might not reflect EEA turnovers for the purposes of this case.
            
         
               204
            
            
               The Commission disputes those claims.
            
         Findings of the Court
      
               205
            
            
               Point 13 of the Guidelines states:
               ‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement …’.
            
         
               206
            
            
               Point 18 of the Guidelines provides:
               ‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.
               In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.’
            
         
               207
            
            
               The applicants do not dispute that the marine hoses market is a worldwide market.
            
         
               208
            
            
               It is therefore necessary to examine the wording of point 18 of the Guidelines, which is applicable in the present case.
            
         
               209
            
            
               It must be stated that point 18 of the Guidelines does not – any more than does point 13 thereof – refer to ‘sales delivered’ or ‘sales invoiced’ within the EEA.
            
         
               210
            
            
               It follows that the Guidelines, just as they do not require account to be taken of sales delivered in the EEA, do not preclude the Commission from using the sales invoiced in the EEA to calculate the value of each undertaking’s sales within the EEA.
            
         
               211
            
            
               To be able to use the sales invoiced in the EEA, it is necessary, however, for that criterion to reflect the reality of the market, that is to say for it to be the best criterion for ascertaining the effects of the cartel on competition in the EEA.
            
         
               212
            
            
               It is not disputed by the applicants that, while the end use location of most marine hoses systems is outside Europe, some of the main worldwide OEM manufacturers are based in the various Member States of the European Union and Contracting Parties to the EEA Agreement (see recital 59 of the contested decision). Consequently, the effect on competition within the EEA of the marine hoses cartel appears to be correctly reflected by taking into consideration the sales invoiced in the EEA and the applicants’ argument that only sales delivered in the EEA enable the effects of the cartel in the EEA to be assessed must be rejected.
            
         
               213
            
            
               By contrast, it is irrelevant that in its Notice on concentrations the Commission may favour the place of delivery when determining the turnover to be taken into consideration. Assessing the effects of a concentration on the market is not comparable to determining the amount of a fine to be imposed on an undertaking as a result of an infringement of Article 81 EC, even if the determination of the value of the market were identical in the Notice on concentrations and the Guidelines.
            
         
               214
            
            
               Furthermore, the fact that the Commission imposes a limit on itself in one field of competition law does not require it to impose a limit on itself in the same way in another field, nor does it result ipso facto in an identical limitation in that field.
            
         
               215
            
            
               Moreover, the fact that it was found in the contested decision that replacement sales to end-users – who are indeed to a large extent situated outside of the EEA – account for a greater proportion of the worldwide marine hoses market than sales of new products (recital 55 of the contested decision) does not contradict the Commission’s assessment that, in the present case, the location where the entity to which the sales are invoiced is based is the most adequate criterion to assess whether sales take place within the EEA (recital 427 of the contested decision), which means that only the sales invoiced to customers based in the EEA – irrespective of the location of the end-users – were taken into consideration by the Commission.
            
         
               216
            
            
               It must therefore be examined whether, in the light of the foregoing considerations, the Commission made use of the data which the undertakings provided regarding sales, namely the data relating to the sales invoiced, in a manner which those undertakings did not expect and in such a way as to infringe their legitimate expectations.
            
         
               217
            
            
               According to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the Community administration, by giving him precise assurances, led him to entertain legitimate expectations (Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport [2004] ECR I-6911, paragraph 70, and Case T-203/96 Embassy Limousines & Services v Parliament [1998] ECR II-4239, paragraph 74). Regardless of the form in which it is communicated, precise, unconditional and consistent information which comes from authorised and reliable sources constitutes such assurances (see, to that effect, Case C-82/98 P Kögler v Court of Justice [2000] ECR I-3855, paragraph 33). However, a person may not plead infringement of that principle unless he has been given precise assurances by the authorities (judgment of 24 November 2005 in Case C-506/03 Germany v Commission, not published in the ECR, paragraph 58, and judgment in Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479, paragraph 147). Moreover, only assurances which comply with the applicable rules may give rise to legitimate expectations (Case T-347/03 Branco v Commission [2005] ECR II-2555, paragraph 102; Case T-282/02 Cementbouw Handel & Industrie v Commission [2006] ECR II-319, paragraph 77; and Case T-334/07 Denka International v Commission [2009] ECR II-4205, paragraph 132).
            
         
               218
            
            
               The fact remains that, in the present case, the Commission did not give the applicants any assurances, within the meaning of that case-law, that the data concerning the sales invoiced in the EEA, which they had initially provided of their own free will and then at the request of the Commission, would not be used to calculate the fine which would be imposed on them.
            
         
               219
            
            
               The applicants cannot therefore rely on any infringement of the principle of the protection of legitimate expectations as regards the taking into consideration, for the purposes of the calculation of the fine imposed on them, of the information concerning the sales invoiced in the EEA with which they provided the Commission on their own initiative.
            
         
               220
            
            
               Accordingly, the seventh plea must be rejected.
            
         
         The eighth plea, alleging infringement of Article 23(2) of Regulation No 1/2003 and infringement of the principle of personal liability and of the obligation to state reasons in the calculation of the ceiling of 10% of turnover
      
      Arguments of the parties
      
               221
            
            
               First, the applicants claim that the Commission ought to have taken Parker ITR’s turnover, and not Parker-Hannifin’s consolidated turnover, into account when calculating the ceiling of 10% for the fine imposed on Parker ITR and that the Commission thus infringed Article 23(2) of Regulation No 1/2003. In their view, it follows from the case-law that where two legal entities belonged to the same undertaking at the time of infringement, but no longer belonged to that undertaking at the time of the Commission decision, the 10% ceiling must be calculated on the basis of their respective separate turnovers. The same reasoning ought to have been applied by analogy in the present case, since Saiag and ITR, which, for the greater part of the duration of the infringement, were the owners of the assets which took part in the infringement, constituted an undertaking which was independent of the undertaking Parker-Hannifin.
            
         
               222
            
            
               The applicants claim that any other interpretation would contravene the principle of legal certainty and lead to disproportionate results.
            
         
               223
            
            
               Secondly, the applicants maintain that the contested decision also infringes the principle of personal liability since, between 1 April 1986 and 31 January 2002, Parker ITR’s marine hose assets belonged to different undertakings.
            
         
               224
            
            
               Thirdly, the applicants contend that the Commission failed to address the arguments which they put forward during the administrative procedure concerning the interpretation of Article 23(2) of Regulation No 1/2003. In their submission, the contested decision merely states that the adjusted basic amounts taken for the fines do not exceed the 10% ceiling, which does not enable the applicants to understand the justification for the Commission’s decision to calculate the 10% ceiling on the basis of Parker-Hannifin’s turnover for the part of the fine for which Parker ITR was held solely liable.
            
         
               225
            
            
               The Commission disputes those claims.
            
         Findings of the Court
      
               226
            
            
               It must be borne in mind, first, that the first plea must be upheld and that, consequently, the period of the infringement in respect of which Parker ITR must be held liable runs from 1 January 2002 to 2 May 2007 and, secondly, that the third plea must be rejected, which leads this Court to take the view that, during the whole of the period of the infringement, with the exception of the period from 1 January 2002 to 31 January 2002, Parker ITR was a wholly-owned subsidiary of Parker-Hannifin over which the latter company exercised a decisive influence.
            
         
               227
            
            
               Furthermore, according to settled case-law, the objective sought by the introduction of the 10% ceiling can be realised only if that ceiling is applied initially to each separate addressee of the decision imposing the fine. It is only if it subsequently transpires that several addressees constitute the ‘undertaking’, that is the economic entity responsible for the infringement penalised, again at the date when the decision is adopted, that the ceiling can be calculated on the basis of the overall turnover of that undertaking, that is to say of all its constituent parts taken together (Tokai Carbon and Others v Commission, paragraph 125 above, paragraph 390).
            
         
               228
            
            
               Since the first plea has been upheld, the eighth plea, in so far as it relates to the period of the infringement prior to 1 January 2002 during which the infringement was committed by ITR, is ineffective. Moreover, it is unfounded, in so far as it relates to the period of the infringement after 1 January 2002, since, during the whole of that period, with the exception of one month, Parker ITR and Parker-Hannifin constituted an economic entity which was liable for the infringement penalised. The ceiling for the fine could therefore be calculated on the basis of the overall turnover of that undertaking, that is to say of all its constituent parts taken together.
            
         
               229
            
            
               Since the first plea has been upheld, it is not also necessary to examine the other heads of claim, alleging infringement of the principles of personal liability and of proportionality and of the obligation to state reasons, inasmuch as they relate to the effect of the taking into account, in the contested decision, of the period prior to 1 January 2002.
            
         
               230
            
            
               Consequently, the eighth plea must be rejected.
            
         
         The ninth plea, alleging infringement of the principle of the protection of legitimate expectations and of the obligation to state reasons, owing to the Commission’s refusal to apply a reduction of the fine for cooperation
      
      The contested decision
      
               231
            
            
               It is apparent in essence from recitals 489 to 493 of the contested decision that Parker ITR submitted to the Commission, under the leniency programme, documents regarding which the Commission took the view, first, that they had little added value as regards the period from 1986 to 2007 and, secondly, that they did indeed contain evidence proving the existence of the cartel from 1972 until the early 1980s. The Commission however found that that period had to be regarded as being time-barred. It concluded from that that the applicants should not be granted any reduction in the fine.
            
         Arguments of the parties
      
               232
            
            
               The applicants claim that they meticulously compiled and submitted, in their leniency application, substantial evidence of facts, [confidential], previously unknown to the Commission and having a direct bearing on [confidential] of the infringement. In the applicants’ submission, the Commission considered that that evidence, which relates to the period between [confidential], provided no added value since [confidential]. However, such an analysis conflicts with [confidential]. Nor has the Commission provided any argument to explain why [confidential].
            
         
               233
            
            
               The applicants maintain, moreover, that if the Commission had considered that the evidence adduced by the applicants had significant added value, Parker ITR could not have been held liable for [confidential] of the cartel based on that evidence, and that partial immunity would have been added to the leniency reduction granted for cooperation, in accordance with the last paragraph of point 26 of the Leniency Notice.
            
         
               234
            
            
               Lastly, the applicants deny having concealed the cartel when they were aware of it.
            
         
               235
            
            
               The Commission disputes those claims.
            
         Findings of the Court
      
               236
            
            
               Point 26 of the Leniency Notice provides:
               ‘The Commission will determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from, relative to the fine which would otherwise be imposed. For the:
               
                        —
                     
                     
                        first undertaking to provide significant added value: a reduction of 30-50%,
                     
                  
                        —
                     
                     
                        second undertaking to provide significant added value: a reduction of 20-30%,
                     
                  
                        —
                     
                     
                        subsequent undertakings that provide significant added value: a reduction of up to 20%.
                     
                  In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point (24) was submitted and the extent to which it represents added value.
               If the applicant for a reduction of a fine is the first to submit compelling evidence in the sense of point (25) which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence.’
            
         
               237
            
            
               Point 36 of the Leniency Notice provides:
               ‘The Commission will not take a position on whether or not to grant conditional immunity, or otherwise on whether or not to reward any application, if it becomes apparent that the application concerns infringements covered by the five years limitation period for the imposition of penalties stipulated in Article 25(1)(b) of Regulation 1/2003, as such applications would be devoid of purpose.’
            
         
               238
            
            
               In the present case, the evidence in respect of which the applicants consider that they should have benefitted from a reduction in the fine pursuant to the Leniency Notice relates to the period [confidential].
            
         
               239
            
            
               Even if it were significant, that evidence relates to a period [confidential].
            
         
               240
            
            
               As the Commission correctly points out, that infringement period, even if it were sufficiently proved as a result of that evidence, would have been considered to be subject to limitation.
            
         
               241
            
            
               The Commission also maintains, in recital 491 of the contested decision, that the evidence provided for the period [confidential] is too insubstantial to prove an infringement.
            
         
               242
            
            
               Since the Commission found that it did not have sufficient evidence of collusive activity to prove that there was an infringement during the period [confidential], it had to conclude that the period to which the evidence submitted by the applicants [confidential] and the Commission was right to refuse to reduce the applicants’ fine in the light of that evidence’s lack of any added value.
            
         
               243
            
            
               It must therefore be held that the contested decision contains a detailed statement of reasons in that regard, which is set out in recitals 489 to 493 of that decision.
            
         
               244
            
            
               The ninth plea must therefore be rejected in its entirety.
            
         
               245
            
            
               In the light of all of the foregoing considerations, Article 1 of the contested decision must be annulled in so far as it found that Parker ITR had taken part in the infringement in respect of the period prior to 1 January 2002. Consequently, Article 2 of the contested decision must also be annulled in so far as it concerns the applicants.
            
         
         The claim for amendment, the exercise by the Court of its unlimited jurisdiction and the determination of the final amount of the fine
      
      
               246
            
            
               It must be borne in mind that, in accordance with Article 261 TFEU, regulations adopted jointly by the European Parliament and the Council of the European Union, pursuant to the provisions of the FEU Treaty, may give the Court of Justice unlimited jurisdiction with regard to the penalties provided for in such regulations. Such jurisdiction was conferred on the Community judicature by Article 31 of Regulation No 1/2003. The Courts of the European Union are therefore empowered, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. It follows that the Courts of the European Union are empowered to exercise their unlimited jurisdiction where the question of the amount of the fine is before them and that that jurisdiction may be exercised to reduce that amount as well as to increase it (see Case C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, paragraphs 60 to 62 and the case-law cited).
            
         
               247
            
            
               Furthermore, under Article 23 of Council Regulation (EC) No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.
            
         
               248
            
            
               The Court of Justice has held that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as 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 European Community (see Case C-386/10 P Chalkor v Commission [2011] ECR I-13085, paragraph 56 and the case-law cited).
            
         
               249
            
            
               The Court of Justice has also stated that objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (Chalkor v Commission, paragraph 248 above, paragraph 57).
            
         
               250
            
            
               In that regard, it must be borne in mind that, by its nature, the fixing of a fine by the General Court, in the exercise of its unlimited jurisdiction, is not an arithmetically precise exercise. Moreover, the Court is not bound by the Commission’s calculations, but must carry out its own assessment, taking all the circumstances of the case into account (judgment of 14 September 2004 in Case T-156/94 Aristrain v Commission, not published in the ECR, paragraph 161).
            
         
               251
            
            
               In the present case, having regard to the Court’s assessment in the context, first, of the first part of the first plea and, secondly, of the fifth and sixth pleas and to the errors found to exist on that occasion (see paragraphs 130, 140 and 146 above), the Court considers it appropriate to exercise the unlimited jurisdiction conferred upon it by Article 31 of Regulation No 1/2003 and to substitute its own appraisal for the Commission’s as regards the amount of the fine which must be imposed on the applicants.
            
         
               252
            
            
               In the present case, it must be pointed out that the seriousness of the cartel is indisputable, in the light of the fact that the infringing conduct, in which the applicants fully participated, was characterised by the allocation of tenders, price-fixing, quota-fixing, the fixing of sales conditions, the sharing of geographic markets, and the exchange of sensitive information on prices, sales volumes and procurement tenders. Furthermore it is a worldwide cartel.
            
         
               253
            
            
               However, the duration of the infringement, in view of the fact that the first plea has been upheld, must be reduced to 5 and a half years instead of 19 years as regards Parker ITR, which cannot be held liable for the infringements committed between 1986 and December 2001 by ITR and Saiag and their predecessors.
            
         
               254
            
            
               Furthermore, it follows that the applicants do not have to answer for the role of leader played by ITR between 1999 and 2001.
            
         
               255
            
            
               In the light of the foregoing considerations and having regard in particular to the cumulative effect of the unlawful acts previously held to have been committed, the Court holds that a fair assessment of all the circumstances in the case will be made by setting the final amount of the fine imposed on Parker ITR at EUR 6 400 000. A fine of such an amount makes it possible effectively to penalise the applicants’ unlawful conduct, in a manner which is proportionate to the gravity of the infringement and is sufficiently deterrent.
            
         
               256
            
            
               Furthermore, regard must be had to the fact that Parker-Hannifin acquired all the shares in ITR Rubber on 31 January 2002 and to the fact that the amount of the fine which the parent company must be ordered to pay jointly and severally has to be established in respect of the period from that date to 2 May 2007.
            
         
               257
            
            
               In view of all of the foregoing, it is necessary, first, to annul Article 1(i) of the contested decision, in so far as it relates to the infringement attributed to Parker ITR in respect of the period before January 2002, secondly, to set the amount of the fine imposed on Parker ITR at EUR 6 400 000, of which Parker-Hannifin is held to be jointly and severally liable for EUR 6 300 000, since Parker-Hannifin cannot be found jointly and severally liable for the period from 1 to 31 January 2002, and, thirdly, to dismiss the action as to the remainder.
            
         
         Costs
      
      
               258
            
            
               Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared.
            
         
               259
            
            
               In the present case, it must be borne in mind that the applicants have applied for a substantial reduction in the fine, which has been granted to them. The Commission is therefore ordered to bear its own costs and to pay those incurred by the applicants.
            
          
            
               On those grounds,
               THE GENERAL COURT (First Chamber)
               hereby:
            
          
            
               
                        
                           1.
                        
                     
                     
                        
                           Annuls Article 1(i) of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine hoses), in so far as in that decision the European Commission found that Parker ITR Srl had participated in the infringement in respect of the period before 1 January 2002;
                        
                     
                  
          
            
               
                        
                           2.
                        
                     
                     
                        
                           Annuls Article 2(e) of Decision C(2009) 428 final;
                        
                     
                  
          
            
               
                        
                           3.
                        
                     
                     
                        
                           Sets the amount of the fine imposed on Parker ITR at EUR 6 400 000, of which Parker-Hannifin Corp. is jointly and severally liable for EUR 6 300 000;
                        
                     
                  
          
            
               
                        
                           4.
                        
                     
                     
                        
                           Dismisses the action as to the remainder;
                        
                     
                  
          
            
               
                        
                           5.
                        
                     
                     
                        
                           Orders the Commission to bear its own costs and to pay those incurred by Parker ITR and Parker-Hannifin.
                        
                     
                  
          
               
                  
                     
                        
                           Azizi
                        
                        
                           Prek
                        
                        
                           Frimodt Nielsen
                        
                     
                     Delivered in open court in Luxembourg on 17 May 2013.
                     [Signatures]
                  
               
            Table of contents
       
               
                  Background to the dispute
               
             
               
                  The marine oil and gas hoses sector
               
             
               
                  Presentation of the applicants
               
             
               
                  The administrative procedure
               
             
               
                  The contested decision
               
             
               
                  Procedure and forms of order sought
               
             
               
                  Law
               
             
               
                  The claims for annulment
               
             
               
                  The first plea, alleging the incorrect attribution of liability for the infringement to Parker ITR for the period before 1 January 2002
               
             
               
                  Contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The fourth plea, alleging that the imposition of a fine on Parker ITR for the period before 11 June 1999 is incorrect
               
             
               
                  The contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The fifth plea, alleging that the fine was wrongly increased on the ground that Parker ITR played the role of leader
               
             
               
                  The contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The sixth plea, alleging infringement of the principle of individual responsibility and the obligation to state reasons with respect to the increase of the fine imposed on Parker-Hannifin for Parker ITR’s role as leader
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The second plea, alleging incorrect attribution to the applicants of liability for the infringement related to the unlawful conduct of Mr P., manager of the Oil & Gas unit
               
             
               
                  The contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The third plea, alleging that Parker-Hannifin was wrongly considered to be jointly and severally liable for the infringement with Parker ITR
               
             
               
                  The contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The seventh plea, alleging infringement of the principle of the protection of legitimate expectations owing to the application of an incorrect method of calculating the value of sales for the purposes of setting the fine
               
             
               
                  The contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The eighth plea, alleging infringement of Article 23(2) of Regulation No 1/2003 and infringement of the principle of personal liability and of the obligation to state reasons in the calculation of the ceiling of 10% of turnover
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The ninth plea, alleging infringement of the principle of the protection of legitimate expectations and of the obligation to state reasons, owing to the Commission’s refusal to apply a reduction of the fine for cooperation
               
             
               
                  The contested decision
               
             
               
                  Arguments of the parties
               
             
               
                  Findings of the Court
               
             
               
                  The claim for amendment, the exercise by the Court of its unlimited jurisdiction and the determination of the final amount of the fine
               
             
               
                  Costs
               
            (
            *1
         )	Language of the case: English.
      (
            1
         )	Confidential data omitted.
    ---documentbreak--- 
      
         
            
               Parties
               Grounds
               Operative part
               
            
            Parties
            In Case T‑146/09 RENV,
            Parker Hannifin Manufacturing Srl, formerly Parker ITR Srl, established in Corsico (Italy), 
            Parker-Hannifin Corp.,  established in Mayfield Heights (Ohio, United States),
            represented by B. Amory, F. Marchini Camia and É. Barbier de La Serre, lawyers,
            applicants
            v
            European Commission,  represented by V. Bottka, S. Noë and R. Sauer, acting as Agents,
            defendant,
            APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 — Marine hoses), in so far as that decision concerns the applicants, and, in the alternative, application under Article 263 TFEU for annulment or a substantial reduction in the amount of the fine imposed on them in that decision,
            THE GENERAL COURT (Sixth Chamber),
            composed of S. Frimodt Nielsen (Rapporteur), President, J. Schwarcz and A.M. Collins, Judges, 
            Registrar: M. Junius, Administrator,
            having regard to the written part of the procedure and further to the hearing on 24 February 2016,
            gives the following
            
            Grounds
            Judgment 
            Background to the dispute 
            1. The present case is part of a dispute relating to the marine hose cartel which was penalised by the European Commission in Decision C(2009) 428 final, of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 — Marine hoses) (‘the contested decision’).
            2. 11 companies were the addressees of the contested decision, including Bridgestone Corporation and Bridgestone Industrial Limited (together referred to as ‘Bridgestone’); The Yokohama Rubber Company Limited (‘Yokohama’); Dunlop Oil & Marine Limited (‘DOM’); the first applicant, Parker ITR Srl (now Parker Hannifin Manufacturing Srl) (‘Parker ITR’); the second applicant, Parker-Hannifin Corp (‘Parker-Hannifin’); and Manuli Rubber Industries SpA (‘Manuli’).
            3. In the contested decision, the Commission found that from 1986 to 2007 a group of undertakings active in the marine hose sector had participated in a cartel on a worldwide scale and imposed fines on them for a total amount of EUR 131 000 000.
            4. ITR Rubber (which subsequently became Parker ITR), which was formed on 27 June 2001 by its parent company, ITR SpA, part of the Saiag group, has been active in the marine hose business since 1 January 2002. On that date ITR transferred to ITR Rubber its assets in that business, with a view to their resale to Parker-Hannifin, part of the Parker group. The sale of ITR Rubber to Parker-Hannifin took effect on 31 January 2002.
            5. In the contested decision, the Commission took the view that, in the present case, the principle of personal liability was to be discounted and the principle of economic continuity was to be applied since Parker ITR was the economic successor to the marine hose business carried on by ITR and by Saiag SpA and therefore had to be held liable for the infringement committed by ITR and Saiag prior to 1 January 2002, the date on which the assets in the marine hose business were transferred to it. Parker-Hannifin was held jointly and severally liable for Parker ITR’s conduct as from the date of Parker ITR’s acquisition on 31 January 2002. Consequently, the Commission considered that Parker ITR was liable for the infringement from 1 April 1986 to 2 May 2007 and imposed on it a fine of EUR 25 610 000, for EUR 8 320 000 of which Parker-Hannifin was held jointly and severally liable.
            6. On 9 April 2009, Parker ITR and Parker-Hannifin brought an action before the General Court seeking annulment of the contested decision in so far as it concerned them and, in the alternative, a reduction in amount of the fine imposed.
            7. In the judgment of 17 May 2013 in Parker ITR and Parker-Hannifin  v Commission  (T‑146/09, EU:T:2013:258) (‘the judgment of the General Court’), the General Court held that the principle of economic continuity did not apply in situations such as that in the case before it and that the principle of personal liability should be applied. Consequently, the General Court held that the case concerned a transfer by the undertaking involved in the cartel, namely Saiag and its subsidiary ITR, of part of the activities of the latter to an independent third party, namely Parker-Hannifin: as such, the creation of ITR Rubber and the transfer of assets to that company by ITR essentially consisted of the incorporation of the rubber hoses business into a subsidiary and was part of an objective of transferring those assets to Parker-Hannifin (paragraph 115 of the judgment of the General Court). That Court took the view that there was no link between the transferor, Saiag or ITR, and the transferee, Parker-Hannifin (paragraph 116 of the judgment of the General Court). On the contrary, in accordance with the principle of personal liability, it was for the Commission to find that ITR and Saiag were liable for the infringement until 1 January 2002 and, therefore, it could not hold ITR Rubber (now Parker ITR) liable for the period prior to that date (paragraphs 118 and 119 of the judgment of the General Court). Accordingly, the General Court annulled the contested decision in so far as it found that Parker ITR had participated in the infringement during the period prior to 1 January 2002 and set the amount of the fine imposed on Parker ITR at EUR 6 400 000, for EUR 6 300 000 of which Parker-Hannifin was jointly and severally liable.
            8. By application lodged at the Registry of the Court of Justice on 1 August 2013, the Commission brought an appeal against the judgment of the General Court.
            9. The Court, in the judgment of 18 December 2014 in Commission  v Parker Hannifin Manufacturing and Parker-Hannifin  (C‑434/13 P, EU:C:2014:2456) (‘the judgment on appeal’), took the view, in essence, that the General Court had erroneously treated two distinct transactions as one, inasmuch as it had only taken into account the transfer of ITR Rubber to Parker-Hannifin, whereas there had previously been an intra-group transfer of assets from ITR to ITR Rubber, which was relevant for the purposes of the application of the principle of economic continuity (paragraphs 46, 49 and 54 of the judgment on appeal). The Court held that that principle applies by reason of the structural links between ITR and its wholly-owned subsidiary, ITR Rubber, at the time of the transfer of assets to the latter (paragraph 55 of the judgment on appeal). However, the Court stated that a situation of economic continuity could be excluded in the absence of real links, in the form of actual exercise by ITR of decisive influence over ITR Rubber, which had not been examined at first instance (paragraphs 56 and 65 of the judgment on appeal). Consequently, the Court set aside paragraphs 1 to 3 of the operative part of the judgment of the General Court and referred the case back to the General Court for a ruling on the action.
            10. A detailed description of the background to the dispute, in particular as regards the marine hose sector, the history of the applicants, the administrative procedure and the contested decision is set out in paragraphs 1 to 34 of the judgment of the General Court and paragraphs 6 to 17 of the judgment on appeal.
            Procedure and forms of order sought 
            11. Following the judgment on appeal, and in accordance with Article 118(1) of the Rules of Procedure of the General Court of 2 May 1991, the present case was assigned to the Sixth Chamber of the General Court.
            12. As a Member of the Sixth Chamber was unable to sit in the present case, the President of the General Court designated another judge to complete the Chamber.
            13. On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of its Rules of Procedure, requested that the Commission lodge certain documents. The Commission complied with that request within the prescribed period.
            14. The parties presented oral argument and replied to the oral questions put by the Court at the hearing on 24 February 2016.
            15. The applicants claim that the Court should:
            – annul the contested decision in so far as it holds Parker ITR liable for the infringement from 1 April 1986 to 31 January 2002;
            – substantially reduce the amount of the fine imposed on them;
            – order the Commission to pay the costs.
            16. The Commission contends that the Court should:
            – dismiss the application in its entirety;
            – order the applicants to pay the costs relating to the proceedings in Cases T‑146/09, C‑434/13 P and T‑146/09 RENV.
            Law 
            The scope of the case after its referral back to the General Court 
            Arguments of the parties
            17. The applicants submit that, following referral, the General Court must rule on all the pleas for annulment that they have raised, provided that those pleas are reflected in an element of the operative part of the judgment set aside by the Court of Justice, including those which, at first instance, were rejected as inoperative or were upheld as a mere consequence of the upholding of a plea that is to be re-examined following the referral.
            18. Furthermore, in their observations, the applicants state that they withdraw their second, third, fourth, seventh and ninth pleas.
            19. The Commission submits that, in the present case after referral back, the General Court cannot carry out a de novo  assessment of claims which were not raised in the original application or which, having been rejected on the merits by the General Court, were not the subject of an appeal, in particular those relating to the 10% cap on turnover in the eighth plea. Furthermore, it maintains that, in proceedings after referral back, a de novo  assessment is precluded in so far as it relates to matters on which the Court of Justice gave a definitive ruling in its judgment on appeal.
            Findings of the Court
            20. First of all, it must be pointed out, as has been stated in paragraph 18 above, that the applicants have withdrawn their second, third, fourth, seventh and ninth pleas.
            21. Secondly, it must be borne in mind that, under Article 61 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, if the appeal is well founded and the case is referred back to the General Court for judgment in the matter, that Court is bound by the decision of the Court of Justice on points of law.
            22. Consequently, once the Court of Justice has set aside a judgment or an order and referred the case back to the General Court, that Court is seised, pursuant to Article 215 of the Rules of Procedure, of the case by the judgment of the Court of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the Court of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata  (judgment of 14 September 2011 in Marcuccio  v Commission , T‑236/02, EU:T:2011:465, paragraph 83).
            23. In the present case, by the judgment on appeal, the Court of Justice set aside paragraphs 1 to 3 of the operative part of the judgment of the General Court, referred the case back to that Court for a ruling on the merits of the action and reserved the costs. Accordingly, following the referral of the case back by the Court of Justice, it is for the General Court to rule, although bound by the judgment on appeal on points of law, on all the pleas in law put forward by the applicants in support of their action to the extent that they constitute the basis for paragraphs 1 to 3 of the operative part of the judgment of the General Court which were set aside by the Court of Justice.
            24. In that regard, it is apparent from the judgment of the General Court that paragraphs 1 to 3 of the operative part of that judgment are based on the General Court’s upholding of the first part of the first plea and the fifth and sixth pleas put forward by the applicants and on the unlawful acts which it held to have been committed when it examined those pleas.
            25. Lastly, as regards the eighth plea, it must be pointed out that, in the judgment on appeal, the Court of Justice rejected as inadmissible the applicants’ argument disputing the General Court’s assessment of the eighth plea in law put forward in their action on the ground that they had not submitted a cross-appeal by a separate document, distinct from their response, against such an assessment.
            26. In paragraphs 94 to 97 of the judgment on appeal, the following was held:
            ‘94. In paragraph 228 of the judgment under appeal, the General Court … held that the eighth plea in law put forward in the application was unfounded in so far as it related to the infringement period subsequent to 1 January 2002, including the period from 1 to 31 January 2002 during which ITR Rubber was not yet owned by the Parker-Hannifin group.
            95. The assessment carried out by the General Court is reflected in the calculation method that it used to recalculate the amount of the fine imposed on Parker ITR and in paragraph 3 of the operativ e part of the judgment under appeal, where it did not distinguish between the period from 1 to 31 January 2002 and the period subsequent to that date.
            96. Accordingly, it must be held that the General Court indeed examined and dealt with, in the context of the eighth plea in law, the point of law raised by Parker ITR and by Parker-Hannifin, by rejecting their argument.
            97. In those circumstances, since the respondents have not, as required under Article 176(2) of the Rules of Procedure, submitted a cross-appeal by a separate document, distinct from their response, directed against the General Court’s assessment of the eighth plea in law put forward in their action, their argument relating to the application of Article 23(1) of Regulation No 1/2003 must be rejected as inadmissible.’
            27. In the light of the assessments of the Court of Justice, in particular in paragraph 97 of the judgment on appeal, since the eighth plea was rejected in the judgment of the General Court with regard to the period subsequent to 1 January 2002, that element of that judgment, against which a cross-appeal was not brought and which was not therefore set aside by the Court of Justice, must be held to have acquired the authority of res judicata .
            28. However, in paragraph 228 of the judgment of the General Court, that Court rejected the eighth plea as inoperative in so far as it related to the period prior to 1 January 2002 on the ground that it had upheld the first plea and it did not examine the claims alleging infringement of the principles of personal liability and of proportionality and of the obligation to state reasons, inasmuch as they related to that period.
            29. Furthermore, it must be stated that, in the judgment of the General Court, that Court’s assessment of the eighth plea was based, as regards the period of the infringement prior to 1 January 2002, on the upholding of the first plea and that the upholding of that plea constitutes, as is apparent in particular from paragraphs 253 and 255 of that judgment, the necessary basis for paragraphs 1 to 3 of the operative part of that judgment which were set aside by the Court of Justice.
            30. The General Court cannot therefore be regarded as having made a ruling on the merits of the eighth plea in so far as it related to the period prior to 1 January 2002.
            31. Consequently, the eighth plea put forward by the applicants must be examined as regards the period prior to 1 January 2002.
            32. In view of the foregoing considerations, the General Court is required to give a ruling on the merits of the action after its referral back by ruling on the first, fifth, sixth and, subject to the conditions described in paragraph 31 above, eighth pleas.
            The first plea, relating to the incorrect attribution of liability to Parker ITR in respect of the period of the infringement before 1 January 2002 
            33. The first plea put forward by the applicants is divided into three parts relating (i) to infringement of the principle of personal liability, (ii) to a misuse of powers and the circumvention of Article 25 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) and (iii) to infringement of the principle of equal treatment and of the obligation to state reasons.
            34. The Commission disputes the arguments put forward by the applicants in support of their first plea.
            Whether the arguments relating to the statement of reasons regarding the links between ITR and ITR Rubber are admissible
            35. In the context of the first part of the first plea, relating to infringement of the principle of personal liability, the applicants claim, inter alia, that there was a failure to state adequate reasons in the contested decision as regards the application of the principle of economic continuity based on the links between ITR and ITR Rubber that were raised for the first time in the contested decision, particularly because the application of that principle is a departure from the Commission’s previous decision-making practice, which applied the principle of personal liability.
            36. The Commission observes that such a line of argument put forward by the applicants in their observations on the action after its referral back, constitutes a new plea inserted into the plea initially put forward which alters the content of that plea and is not therefore admissible.
            37. It is true that the first plea as set out in the application did not contain any reference to a failure to state reasons as regards, specifically, the Commission’s application of the principle of economic continuity as a result of the links existing between ITR and ITR Rubber.
            38. However, first, it must be borne in mind that infringement of the obligation to state reasons is a ground involving a matter of public policy which must be raised by the Court of its own motion and consideration of which may take place at any stage in the proceedings (see, to that effect, judgment of 1 July 2008 in Chronopost and La Poste  v UFEX and Others , C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraphs 48 to 50).
            39. Secondly, it must be pointed out that, in the context of the third part of the first plea, the applicants alleged infringement of the obligation to state reasons as regards the attribution to ITR Rubber of liability for the period of the infringement prior to 1 January 2002 in accordance with the principle of economic continuity, the Commission having departed from its previous practice which was based on the principle of personal liability. Consequently, the arguments put forward by the applicants in their observations following the judgment on appeal, relating to the lack of reasoning for the application of the principle of economic continuity based on the links between ITR and ITR Rubber, may be regarded as closely connected with those put forward in the context of the third part of the first plea, alleging infringement of the obligation to state reasons, and as developing those arguments (see, to that effect, judgment of 28 April 2010 in Gütermann and Zwicky  v Commission , T‑456/05 and T‑457/05, EU:T:2010:168, paragraph 199).
            40. Accordingly, those arguments must be held to be admissible inasmuch as they relate to the third part of the first plea, in the context of which it is appropriate to examine them.
            The attribution to Parker ITR of liability for the infringement committed by ITR during the period prior to 1 January 2002
            41. In the context of the first part of their first plea, the applicants submit, in essence, that the Commission erred in law in attributing to Parker ITR liability for the infringement committed by ITR during the period prior to 1 January 2002, the date on which Parker ITR became active in the marine hose sector, in accordance with the principle of economic continuity and contrary to the principle of personal liability.
            – The application of the principle of economic continuity
            42. It must be borne in mind that, in paragraph 46 of the judgment on appeal, the Court of Justice held the following:
            ‘46. … [I]t must be pointed out that, by ruling out, in paragraph 116 of the judgment under appeal, the application of the principle of economic continuity where, as in the present case, there is no structural link between the transferor, namely Saiag … or its subsidiary ITR …, and the transferee, identified as Parker-Hannifin, the General Court, in its assessment, treated two distinct transactions as one. The General Court failed to take account of the fact that ITR … had first transferred its activities in the marine hoses sector to one of its subsidiaries and then transferred that subsidiary to Parker-Hannifin.’
            43. In paragraphs 50 to 53 of the judgment on appeal, the Court held the following as regards the application of the principle of economic continuity:
            ‘50. … [F]or the purpose of establishing the existence of economic continuity, the relevant date for assessing whether the transfer of activities is within a group or between independent undertakings must be that of the transfer itself.
            51. Whilst there must, on that date, be structural links between the transferor and the transferee on the basis of which it may be considered, in accordance with the principle of personal responsibility, that the two entities form a single undertaking, those links need not, in view of the purpose of the principle of economic continuity, subsist throughout the rest of the infringement period or until the adoption of a decision penalising the infringement …
            52. Likewise, and for the same reasons, it is not necessary that the structural links on the basis of which economic continuity may be established subsist for a minimum period, a period which, in any event, could only be determined retroactively and on a case-by-case basis.
            53. As regards … the taking into consideration, for the purpose of examining the existence of economic continuity, of the objective of the transfer of activities, the principle of legal certainty also provides grounds for dismissing as irrelevant the fact, referred to in paragraph 115 of the judgment under appeal, that the transferee entity was created and received the assets with a view to its subsequent sale to an independent third party. The taking into consideration of the economic reasons which led to the creation of a subsidiary, or the objective, in the long- or short-term, of transferring that subsidiary to a third-party undertaking, would introduce into the application of the principle of economic continuity subjective factors which are incompatible with a transparent and predictable application of that principle.’
            44. In paragraphs 54 to 56 of the judgment on appeal, the Court held that the General Court had erred in law by ruling out the application of the principle of economic continuity in the following terms:
            ‘54. As regards … the assertion in paragraph 116 of the judgment under appeal that, in the circumstances of the present case, the Commission should have attributed to the former operators liability for the infringement committed before the transfer of activities, that assertion forms part of the erroneous reasoning by which the General Court dismissed from the outset the existence of economic continuity. It is settled case-law that, where such a situation is established, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred … 
            55. In view of the foregoing, it must be held that the General Court erred in law in so far as it held, in paragraphs 115 and 116 of the judgment under appeal, that a situation of economic continuity was precluded in the present case because of the absence of structural links between the transferor and the transferee, which it identified as Saiag … or ITR … and Parker-Hannifin, without taking into consideration the links between ITR … and ITR Rubber at the time of the transfer of activities between those two entities.
            56. That error might nevertheless be irrelevant if, in any event, a situation of economic continuity must be precluded because of the absence of real links between ITR … and ITR Rubber. It is in that context that it is appropriate to assess the respondents’ argument that the General Court was correct to dismiss the existence of a situation of economic continuity since the Commission had failed, in the contested decision, to examine whether ITR Rubber was indeed under the actual control of ITR ...’
            45. First, it is apparent from the foregoing findings that, for the purposes of examining the attribution of liability for the infringement committed by ITR during the period prior to 1 January 2002, the intra-group transfer of the activities in the marine hose sector from ITR to ITR Rubber must be taken into consideration.
            46. Secondly, it is apparent from the judgment on appeal that the date to be taken into consideration in order to assess whether the principle of economic continuity must be applied is that of the transfer of the activities in question.
            47. Thirdly, it is apparent from the findings of the Court of Justice in the judgment on appeal that no consideration should attach to the objective of the transfer, by Saiag and its subsidiary ITR, of the activities relating to marine hoses to Parker-Hannifin, a company in the Parker group, by means of the incorporation of those activities into a subsidiary, namely the formation of the company ITR Rubber. According to the Court of Justice, the objective of and economic reasons for such a transaction are irrelevant.
            48. Fourthly, it follows from those findings that, as a result of the intra-group transfer of activities between ITR and its wholly-owned subsidiary, ITR Rubber, the application of the principle of economic continuity cannot be ruled out in the present case in light of the structural links existing between those two companies at the time of the transfer in question, namely 1 January 2002.
            49. Lastly, it is apparent from the findings of the Court of Justice that, notwithstanding the structural links between ITR and ITR Rubber, the application of the principle of economic continuity could be ruled out in the present case if ITR did not have any real control over ITR Rubber, in the form of the actual exercise of decisive influence. Such control must be considered to be established unless Parker ITR and Parker-Hannifin rebut the presumption that ITR actually exercised decisive influence over ITR Rubber at the time of the relevant transfer within the Saiag Group on 1 January 2002.
            – The presumption of actual exercise of decisive influence
            50. In recital 370 of the contested decision, the Commission stated that, at the time of the transfer of the unlawful activities by ITR to ITR Rubber, those two companies were economically joined by the link of a parent to a wholly-owned subsidiary and were part of the same undertaking. The applicants do not dispute the existence of those structural links.
            51. In that regard, the Court of Justice stated, in paragraph 62 of the judgment on appeal, that it was for the applicants to overturn the rebuttable presumption of actual exercise of decisive influence by ITR over ITR Rubber by the production of sufficient evidence to show that the subsidiary acted independently on the market.
            52. The Court of Justice pointed out, in paragraphs 65 and 66 of the judgment on appeal, that the General Court had erred in law, for the purpose of verifying whether the Commission had correctly applied the principle of economic continuity in the present case, by failing to examine the evidence submitted to it by the applicants concerning the existence or absence of real links in the form of decisive influence exercised by ITR over ITR Rubber.
            53. Consequently, in the context of the present case after its referral back to the General Court, it is necessary to examine whether the evidence which the applicants submitted is sufficient to show that the subsidiary ITR Rubber acted independently on the market.
            54. The General Court is required to conduct that examination with a view to the attribution of liability for the infringement committed by the parent company, namely ITR, to its subsidiary, ITR Rubber, in the light of the case-law referred to by the Court of Justice in paragraph 58 of the judgment on appeal. According to that case-law, in the particular case in which a parent company holds all or almost all of the capital in a subsidiary which has committed an infringement of the European Union competition rules, there is a rebuttable presumption that that parent company in fact exercises a decisive influence over its subsidiary. In such a situation, it is sufficient for the Commission to prove that all or almost all of the capital in the subsidiary is held by the parent company in order to take the view that that presumption applies. The presumption is, however, rebuttable and the entities wishing to rebut it may adduce all factors relating to the economic, organisational and legal links tying the subsidiary to the parent company that they consider to be capable of demonstrating that the subsidiary and the parent company do not constitute a single economic entity, but that the subsidiary acts independently on the market (see judgments of 10 September 2009 in Akzo Nobel and Others  v Commission , C‑97/08 P, EU:C:2009:536, paragraph 60 and the case-law cited, and of 8 May 2013 in Eni  v Commission , C‑508/11 P, EU:C:2013:289, paragraph 47 and the case-law cited; judgment of 18 July 2013 in Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraphs 105 to 111).
            – The rebuttal of the presumption of actual exercise of decisive influence
            55. The applicants submit that, in the light of the following factors, ITR had no decisive influence over ITR Rubber.
            56. In the first place, the applicants submit that, as from its creation as a company, on 27 June 2001, until 1 January 2002, ITR Rubber did not exercise any economic activity, with the result that, during that period, ITR could not have exercised any decisive influence over or given the slightest commercial instruction to its subsidiary.
            57. In that regard, it must be pointed out that, as is apparent in particular from paragraphs 56 et seq. of the judgment on appeal and as the applicants themselves conceded at the hearing, the date to be taken into account in assessing the existence of economic continuity is that of the transfer of activities from ITR to ITR Rubber. The applicants’ arguments relating to the period prior to that transfer are therefore inoperative.
            58. The applicants admit that, as from the transfer of activities from ITR to ITR Rubber, which took place on 1 January 2002, ITR Rubber carried on the ordinary course of the business in question and thus carried out the activities which had been transferred to it.
            59. In the second place, the applicants maintain that, pursuant to section 7.21 of the purchase and sale agreement with Parker-Hannifin, between 1 January 2002 and 31 January 2002, Saiag, ITR and ITR Rubber could not take any action in the rubber business which could affect the interests of Parker-Hannifin, as the future purchaser, without Parker-Hannifin’s prior consent. The applicants submit that that not only prevented Saiag and ITR from exercising any influence – let alone any decisive influence – over ITR Rubber, but also accorded Parker-Hannifin the right to control ITR Rubber together with ITR.
            60. In that regard, it must be pointed out that, according to section 7.21 of the purchase and sale agreement, the seller, ITR, undertook, inter alia, to ensure that ITR Rubber would operate and be managed in the ordinary course of business, the prior consent of the purchaser being necessary for any decision going beyond that ordinary course of business. Specifically, the prior consent of the purchaser was particularly required for alterations relating to the pay system applicable to employees, the distribution of dividends, capital expenditure exceeding EUR 100 000 or the sale of assets unless such a sale was made in the ordinary course of business.
            61. First of all, it is common ground that the date on which ITR Rubber was sold to Parker-Hannifin was 31 January 2002. Consequently, the fact that the purchase and sale agreement of 5 December 2001 stipulated how ITR Rubber was to be managed between that latter date and the actual closing date of the sales transaction cannot be considered to be a transfer of control over that company from the seller to the purchaser. As the applicants themselves admit, the aim of those stipulations was to protect the purchaser’s interests in ensuring that the company or the assets in question, and in particular their value, would be safeguarded until the closing date in a condition which reflected that which had been taken into consideration by the purchaser when the purchase and sale agreement was signed.
            62. Secondly, although those obligations of the seller towards the purchaser with regard to what was known as the interim period preceding the closure of the sale represent rights for the purchaser, in particular as regards the prior authorisation for actions going beyond the ordinary course of business, they were, by their very nature, temporary and remained dependent on the actual closing of the transaction.
            63. Lastly, it must be stated that, under section 7.21 of the purchase and sale agreement, ITR undertook to ensure that ITR Rubber would operate and be managed in the ordinary course of business during what was known as the interim period running from the date on which the agreement was signed to the closing date of the transaction. However, such an undertaking meant that ITR could, in fact, make decisions relating to the management of ITR Rubber. It is true that ITR needed the prior consent of Parker-Hannifin with regard to decisions going beyond the ordinary course of business. However, ITR had the power and the obligation, as a result of the purchase and sale agreement, to ensure the ordinary course of business of ITR Rubber. Contrary to what the applicants submit, that obligation, which ITR undertook in the purchase and sale agreement, constitutes an indication of the fact that the subsidiary ITR Rubber did not function independently on the market.
            64. Although, in that period known as the ‘interim’ period, ITR Rubber cannot be considered to have been controlled by Parker-Hannifin, neither can it be considered an independent entity, which was capable of deciding on its activities in a completely independent way, since ITR ensured that ITR Rubber did not deviate, in particular with respect to its commercial policy, from the ordinary course of business. Consequently, on account of the undertaking of its parent company, ITR Rubber could not have unilaterally decided, for example, to alter its commercial policy or to cease its activities, which would have been possible had ITR Rubber been a completely independent entity.
            65. Furthermore, it was also ITR, which, on 1 January 2002, transferred to ITR Rubber the only assets which ITR Rubber held, whereas prior to that, as the applicants state, ITR Rubber was a shell company and carried on no activity.
            66. In addition, it must be stated that, until the closing of the transaction, the sale of ITR Rubber to Parker-Hannifin was not final. Consequently, as the Commission has correctly pointed out, during what was known as the interim period, ITR, as the sole owner of ITR Rubber, had the power to withdraw from the sale, albeit by running the risk of having to compensate the prospective purchaser in particular under the compensation mechanisms provided for in the agreement itself.
            67. In the third place, the applicants state that the one-month period during which ITR wholly owned ITR Rubber following the transfer of the activities relating to marine hoses and before the sale to Parker-Hannifin became effective, is too short a period for ITR or Saiag to have been capable of exercising decisive influence over ITR Rubber, even if they had had such a power.
            68. It must be pointed out that the length of the period during which ITR wholly owned ITR Rubber following the transfer of the activities relating to marine hoses cannot in itself constitute a factor which is capable of establishing that, during that period, ITR Rubber acted independently on the market.
            69. The fact remains that, at the time when the activities in question were actually transferred to ITR Rubber on 1 January 2002, ITR wholly owned its subsidiary and that, as has been stated in paragraph 63 above, under the purchase and sale agreement with Parker-Hannifin signed on 5 December 2001, ITR had to ensure, even if only for a short period, that ITR Rubber would operate and be managed in the ordinary course of business.
            70. Furthermore, as has been stated in paragraph 66 above, up until the time when the sale to Parker-Hannifin became effective, ITR had the power to take decisions regarding the sale of ITR Rubber, which could have been exercised at any time before the closing of the transaction. In addition, the closing date of the transaction was not fixed in advance by the purchase and sale agreement, since it was subject, inter alia, to certain conditions precedent. Accordingly, although the acquisition of ITR Rubber by Parker-Hannifin became effective on 31 January 2002, it could have taken place on another, in particular a later, date.
            71. Consequently, the fact that, in the end, the period between the transfer of the activities relating to marine hoses to ITR Rubber and the sale of ITR Rubber to Parker-Hannifin was only a month cannot be regarded as a factor which is capable of establishing that ITR Rubber, although it was a wholly-owned subsidiary of ITR, acted independently on the market.
            72. It follows from the foregoing that the evidence put forward by the applicants cannot be regarded as sufficient to prove that, during the period which ran from 1 to 31 January 2002, ITR Rubber acted independently on the market. Consequently, the applicants have not rebutted the presumption that ITR actually exercised decisive influence over its wholly-owned subsidiary ITR Rubber.
            73. Accordingly, it must be held that the Commission did not err when it found that, in accordance with the principle of economic continuity, Parker ITR could be held liable for the conduct of its predecessor, ITR, owing to the transfer of the infringing assets to ITR Rubber, in view of the links which existed between ITR and ITR Rubber at the time of that transfer, in particular the ownership of 100% of its capital, which makes it possible to presume that the parent company actually exercised decisive influence over its subsidiary.
            74. The first part of the first plea must therefore be rejected.
            The application of Article 25 of Regulation No 1/2003
            75. According to Article 25 of Regulation No 1/2003, the powers conferred on the Commission with regard to the imposition of fines or periodic penalty payments are subject to a limitation period of five years, which, in the case of continuing or repeated infringements, begins to run on the day on which the infringement ceases. Any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement interrupts that period.
            76. The applicants submit that there are, in the present case, objective, relevant and consistent factors to demonstrate that the sole purpose of holding Parker ITR liable for the infringement committed by its predecessors was to circumvent the limitation period provided for by Article 25 of Regulation No 1/2003.
            77. The Commission submits that, as is apparent from settled case-law, it has discretion as to whom to address a decision in the event of economic succession, which it exercised correctly in this instance.
            78. In the present case, since the presumption of actual exercise of decisive influence by ITR over ITR Rubber has not been rebutted, it has been held that the principle of economic continuity was applicable on account of the links between ITR and ITR Rubber at the time of the transfer of the activities relating to marine hoses. Accordingly, the attribution to ITR Rubber of liability for the single and continuous infringement from 1 April 1986 until 2 May 2007 is the result, as regards the period prior to 1 January 2002 during which ITR, its predecessor, participated in the infringement, of an application of the principle of economic continuity which has been held, in paragraph 73 above, to have been correctly carried out. Consequently, contrary to what the applicants submit, that attribution of liability cannot stem from a misuse of powers and circumvention of Article 25 of Regulation No 1/2003.
            79. It follows that the limitation period relating to that single and continuous infringement attributed to Parker ITR only began to run on 2 May 2007, the date on which the Commission, having initiated an investigation, carried out a series of inspections at, inter alia, the premises of Parker ITR. Consequently, the Commission’s power to penalise Parker ITR for that infringement was not time-barred in the present case.
            80. Accordingly, the second part of the first plea put forward by the applicants, relating to a misuse of powers and the circumvention of Article 25 of Regulation No 1/2003, must be rejected.
            The obligation to state reasons and the principle of equal treatment
            81. As regards the claim relating to infringement of the obligation to state reasons, it is necessary to assess whether the contested decision was sufficiently reasoned as regards the application of the principle of economic continuity, including with regard to the links existing between ITR and ITR Rubber, for Parker ITR to be held liable for the period prior to 1 January 2002.
            82. According to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the measure in question and must set out clearly and unequivocally the reasoning of the institution which adopted that measure, in such a way as to enable the interested parties to ascertain the reasons for the measure taken and to enable the Court having jurisdiction 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 (judgment of 2 April 1998 in Commission  v Sytraval and Brink’s France , C‑367/95 P, EU:C:1998:154, paragraph 63; judgment of 30 September 2003 in Germany  v Commission , C‑301/96, EU:C:2003:509, paragraph 87, and judgment of 22 June 2004 in Portugal  v Commission , C‑42/01, EU:C:2004:379, paragraph 66).
            83. In recitals 327 to 329 of the contested decision, the Commission set out the reasoning which had led it to refrain from applying the principle of personal liability and to apply the principle of economic continuity in the present case. Accordingly, after setting out the situations in which it took the view that the principle of personal liability applied, the Commission stated that, by contrast, if the entity answerable for the infringement ceased to exist, having been absorbed by another legal entity, that latter entity had to be held answerable. Furthermore, in recital 328, the Commission set out the principle according to which, when a business was transferred from one legal entity to another, in cases where transferor and transferee were economically linked, liability for past behaviour of the transferor could transfer to the transferee, even if the transferor continued in existence.
            84. Specifically, in recital 370 of the contested decision, referring to the reasoning set out in recital 328, the Commission stated which considerations had led it, in accordance with the principle of economic continuity, to attribute to ITR Rubber, now Parker ITR, liability for the infringement in respect of the period prior to 31 January 2002, namely the existence of economic links between a parent company and a subsidiary in which it had a 100% shareholding.
            85. Furthermore, it must be pointed out that, in recital 369 of the contested decision, the Commission set out the arguments disputing the application of the principle of economic continuity which had been put forward by the applicants in reply to the statement of objections, in which arguments the applicants submitted, inter alia, that there were no links between, on the one hand, Parker ITR, formerly ITR Rubber, and, on the other hand, ITR and the Saiag group.
            86. In recitals 370 to 373 of the contested decision, the Commission replied to those arguments, inter alia by stating that, even if the transfer of the assets from ITR to ITR Rubber had been carried out with the aim of their subsequent sale to Parker-Hannifin, that transfer took place at a point in time when those two undertakings belonged to the same group, which, in accordance with the case-law derived from the judgment of 11 December 2007 in ETI and Others  (C‑280/06, EU:C:2007:775), meant that ITR’s liability was attributed to ITR Rubber, in accordance with the principle of economic continuity. The Commission also stated that a subsequent severing of the links between ITR and ITR Rubber could not alter such a conclusion.
            87. Consequently, it must be held that the contested decision sets out clearly and unequivocally the factors on which the Commission relied in order to conclude that the principle of economic continuity applied in the present case, including those regarding the links existing between ITR and ITR Rubber, while at the same time replying to the arguments put forward by the applicants during the administrative procedure.
            88. As regards the alleged infringement of the principle of equal treatment by reason of the application of the principle of economic continuity with regard to ITR Rubber but not with regard to DOM, although DOM was, according to the applicants, in a very similar situation, it is important to bear in mind that, according to settled case-law, that principle 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 judgment of 14 September 2010 in Akzo Nobel Chemicals and Akcros Chemicals  v Commission , C‑550/07 P, EU:C:2010:512, paragraph 55 and the case-law cited).
            89. In the present case, it is apparent from recital 19 of the contested decision that DOM, which was incorporated by the Unipoly group, acquired the marine hose assets of the BTR group. Consequently, in the case of DOM, the transfer of assets in question was carried out between companies which were not connected by structural links, namely BTR, on the one hand, and DOM in the Unipoly group, on the other hand.
            90. By contrast, in the case of ITR Rubber, as has been stated in paragraph 45 above, in accordance with the judgment on appeal, it is the transfer of the activities in the marine hose sector from ITR to ITR Rubber, a parent company and its subsidiary respectively, within the Saiag group, that must be taken into consideration, as the objective of and economic reasons for such a transfer are, as is apparent from paragraph 53 of that judgment, irrelevant.
            91. It is apparent from the findings in the judgment on appeal, referred to in paragraphs 42 and 43 above, that the principle of economic continuity applies in circumstances in which there are real structural links between the company which participated in the infringement and the subsidiary to which the infringing assets were transferred with a view to a subsequent sale to a third-party group. By contrast, in accordance with that case-law, the principle of economic continuity cannot be applied in cases where the infringing assets are transferred to a subsidiary created within the purchaser group and which has no structural links with the seller.
            92. Consequently, by applying the principle of economic continuity with regard to ITR Rubber and discounting that principle as regards DOM, the Commission cannot be accused of having acted contrary to the principle of equal treatment, as the two situations are not comparable.
            93. Accordingly, the third part of the first plea must be rejected, as must that plea in its entirety.
            The fifth plea, relating to the unlawful increase in the amount of the fine imposed on Parker ITR on account of its alleged role as leader in the infringement 
            94. The applicants dispute, first, the fact that ITR had the role of cartel leader from 11 June 1999 to 30 September 2001, submitting that that has not been sufficiently proved by the Commission, secondly, the attribution of ITR’s alleged role of leader to ITR Rubber and, thirdly, the increase in the amount of the fine imposed on Parker ITR in respect of the role of leader attributed to ITR.
            95. The Commission submits that, as a whole, the evidence on which it relied proves that ITR contributed towards making the cartel fully operational again and, in particular, played the key role of bringing Yokohama back to participate in it. The Commission maintains that that justifies the 30% increase in the amount of the fine imposed on Parker ITR. Furthermore, the Commission states that the fact that it refers to Parker ITR is justified because that entity was the economic successor to ITR.
            The attribution to ITR Rubber of the role of leader attributed to ITR
            96. It should be noted at the outset, as regards the reference in the contested decision to Parker ITR and not to ITR as cartel leader during a period in which Parker ITR, originally named ITR Rubber, did not yet exist, that, as has been held in paragraph 73 above, in accordance with the principle of economic continuity, Parker ITR should be held liable for the conduct of ITR, including for its conduct prior to the creation of ITR Rubber on 27 June 2001. Consequently, and without prejudging the merits of the claim relating to the role of leader attributed to ITR, the Commission cannot be criticised for referring to Parker ITR, formerly ITR Rubber, as regards the role of leader attributed to ITR during the period which ran from 11 June 1999 to 30 September 2001.
            The role of leader attributed to ITR
            97. In recital 243 of the contested decision, the Commission stated that, during the period which ran from 11 June 1999 to 30 September 2001, ITR shared the coordination of the cartel with Mr W.
            98. According to settled case-law, where an infringement has been committed by a number of undertakings, it is necessary, in determining the amount of the fines, to establish their respective roles in the infringement throughout the duration of their participation in it. It follow s, in particular, that the role of ‘ringleader’ (leader) played by one or more undertakings in a cartel must be taken into account for the purposes of calculating the amount of the fine, in so far as the undertakings which played such a role must therefore bear special responsibility in comparison with the other undertakings (see judgment of 11 July 2014 in Sasol and Others  v Commission , T‑541/08, EU:T:2014:628, paragraph 355 and the case-law cited).
            99. In accordance with those principles, point 28 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines’) sets out, under the heading ‘Aggravating circumstances’, a non-exhaustive list of circumstances which may lead to an increase in the basic amount of the fine, one of which is the role of leader in the infringement.
            100. In order to be classified as a leader in a cartel, an undertaking must have been a significant driving force for the cartel and have borne individual and specific liability for the operation of the cartel. That factor may, inter alia, be inferred from the fact that the undertaking, through specific initiatives, voluntarily gave a fundamental boost to the cartel, or from a combination of indicia which reveal the determination of the undertaking to ensure the stability and success of the cartel (judgments of 15 March 2006 in BASF  v Commission , T‑15/02, EU:T:2006:74, paragraphs 299, 300, 351, 370 to 375 and 427, and of 27 September 2012 in Shell Petroleum and Others  v Commission , T‑343/06, EU:T:2012:478, paragraph 198).
            101. That is the case where the undertaking participated in cartel meetings on behalf of another undertaking which did not attend them and notified that other undertaking of the results of those meetings (judgment of 15 March 2006 in BASF  v Commission , T‑15/02, EU:T:2006:74, paragraph 439). The same applies where it is shown that that undertaking played a central role in the actual operation of the cartel, for example by organising various meetings, collecting and distributing information within the cartel, and by most often suggesting proposals relating to the operation of the cartel (judgment of 27 September 2012 in Koninklijke Wegenbouw Stevin  v Commission , T‑357/06, EU:T:2012:488, paragraph 284).
            102. Lastly, two undertakings, or even a greater number, may simultaneously have the role of leader attributed to them (see, to that effect, judgments of 15 March 2006 in BASF  v Commission , T‑15/02, EU:T:2006:74, paragraphs 439 and 440, and of 26 April 2007 in Bolloré and Others  v Commission , T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02, EU:T:2007:115, paragraph 561).
            103. It is in the light of the foregoing considerations that it must be examined whether the Commission could, on the basis of sufficient evidence, correctly conclude that ITR had actually played the role of leader in the infringement from 11 June 1999 to 30 September 2001.
            104. In the contested decision, for the purposes of establishing that ITR had played the role of leader, the Commission relied, in addition to the statements of Yokohama in that regard, on the following evidence, which supports those statements.
            105. In the first place, the Commission relied, in recital 461 of the contested decision, in particular, on faxes which ITR sent to other members of the cartel. Those documents, contained in the case-file, have not, moreover, been called into question by the applicants, which, however, dispute the Commission’s interpretation of them. Those documents, dating from June 1999 to June 2001, show, inter alia, that communication between ITR and other members of the cartel took place with a certain regularity and also took place during the period following the month of January 2000, which the applicants themselves admitted during the hearing.
            106. First, it is apparent from those communications that ITR’s employee, Mr P., presented himself as coordinator of a sub-group of participants in the cartel, which confirms Yokohama’s statements.
            107. Secondly, that correspondence shows that, during that period, that employee of ITR took the initiative in gathering confidential information from other participants, in particular Yokohama and Trelleborg, and coordinating the participation of Yokohama and Trelleborg in calls for tenders. It is also apparent from the documents on which the Commission relied that ITR specifically sought to ensure that a joint market share between itself and Yokohama was taken into account within the cartel and to facilitate the participation of Yokohama in meetings.
            108. In the second place, as regards the faxes sent by ITR dated 11 and 21 June 1999, which are referred to in recital 179 of the contested decision, it must be pointed out that, contrary to what the applicants submit, the fact that they concern calls for tender in respect of later dates does not cast doubt on the finding that ITR can be regarded as a coordinator for the cartel during the period in which the faxes were sent. It is precisely the coordination of strategies to be adopted by the participants in the cartel with a view to future calls for tenders that is alleged against ITR.
            109. In the third place, the documents dating from October 1999, which are referred to in recitals 189 and 196 of the contested decision, show, inter alia, that, during that period, ITR’s representative started to collaborate closely with Yokohama and carried out other coordination tasks between some of the members of the cartel which contributed to the operation of the cartel and that has not been disputed by the applicants.
            110. In the fourth place, as regards the communications sent by ITR in December 1999 following the meeting which took place in London (United Kingdom) on 10 December 1999, it must be stated that, irrespective of whether the suggestions made by ITR’s representative were, in the end, accepted or not, the very fact, which has not been disputed by the applicants, that that representative undertook to send such communications shows that he took on a dominant role in maintaining and supervising the activities of the cartel following that meeting.
            111. In the fifth place, as regards the chairmanship of that meeting, it is true that it is common ground that the minutes do not contain any express references to the person who chaired the meeting. However, in addition to the statements of Yokohama in that regard, the Commission relied, without doubt being cast upon its findings in that regard by the applicants, on documents showing that ITR had sent an invitation to that meeting to Yokohama and had made communications following the meeting and on the fact that its contribution at the meeting was reproduced last in the minutes. It must be held that that evidence constitutes at the very least an indication of a dominant role in the preparation and holding of the meeting and in the follow-up to that meeting.
            112. In the sixth place, it must be pointed out that the applicants do not dispute the fact that ITR started to collaborate closely with Yokohama, which is apparent from a number of documents which are referred to, inter alia, in recitals 219 and 241 of the contested decision and which show that ITR organised meetings with Yokohama and kept up a correspondence relating to that collaboration not only with Yokohama, but also with other members of the cartel, in particular during the period from January 2000 to June 2001.
            113. First, the fact that ITR actively undertook to ensure the participation of Yokohama, one of the two Japanese players, and therefore to ensure the participation in the cartel of two undertakings representing almost one quarter of the global market, may in itself be regarded as a key element in re-establishing and strengthening the cartel.
            114. Secondly, the fact that information relating to that collaboration was communicated to the other members of the cartel would have contributed towards reassuring them as regards that part of the cartel and accordingly towards the operation of the cartel in general.
            115. In that regard, the minutes of the meeting of 11 and 12 June 2001 confirm that, at that time, within the cartel, Yokohoma and ITR were perceived as players which were collaborating so closely in the market that a common quota was allocated to them.
            116. Consequently, that evidence regarding ITR’s close collaboration with Yokohama and the fact that it ensured that Yokohama would participate in the cartel may reasonably be held to support the Commission’s finding relating to the role of leader in the cartel which it attributed to ITR.
            117. In the seventh place, it must be stated that, contrary to what the applicants submit, the evidence set out by the Commission, including that relating to the close coordination between Yokohama and ITR, refers to a period covering at least from 11 June 1999 to the month of June 2001. Furthermore, it is apparent from the case-file that, as from October 2001, ITR was no longer in charge of coordinating Yokohama’s participation in the cartel, which is not, moreover, disputed by the applicants. Consequently, the Commission took 30 September 2001 as the date on which ITR’s activities as leader in the cartel ceased.
            118. In the light of all of the evidence which has just been examined, it must be held that the Commission was right in classifying ITR as a leader in the cartel in respect of the period covering at least from 11 June 1999 to 30 September 2001.
            119. That finding cannot be invalidated by the applicants’ arguments relating to the evidence which they regard as disproving the contention that ITR played the role of a leader in the cartel.
            120. First of all, the claim that Yokohama and ITR were interested, from a commercial perspective, in the objectives of the cartel does not cast doubt on the finding that Yokohama’s participation in the cartel was made easier by ITR’s assistance as coordinator during the period that the Commission took into consideration.
            121. Secondly, the role played by other members of the cartel, such as Bridgestone and DOM, as well as by Mr W. or his undertakings, which allegedly provided the management and overall coordination of the cartel during long periods in the course of its existence, and the claim that they were perceived by the other members as the main coordinators of the cartel is not incompatible with the role of leader such as that which the Commission attributed to ITR. As regards specifically the period from 11 June 1999 to 30 September 2001, the arguments put forward by the applicants do not establish that Mr W., in particular through his undertakings, was the sole coordinator of the cartel. The coordination functions which ITR provided during that period are not such as to preclude a main coordinator from providing the overall leadership of the cartel. That coexistence would explain in particular the fact that ITR was not present at all the meetings of the cartel.
            122. Lastly, the claims that other members had doubts about ITR’s role as coordinator of the cartel and that that role was not formalised do not invalidate the Commission’s finding that ITR acted as coordinator, at least of the ITR/Yokohama block, and ensured that there was some coordination with the other members of the cartel, in particular following the meeting of 10 December 1999. The doubts expressed, in particular by Manuli in June 1999 with regard to a European cartel coordinator, cannot call into question the various documents put forward by the Commission which prove that ITR actually carried out coordination activities among other participants in the cartel, irrespective of whether and for how long fixed sub-groups were formally established within the cartel.
            The increase in the fine in respect of the role of leader attributed to ITR
            123. The applicants dispute the 30% increase applied to the amount of the fine imposed on Parker ITR in respect of the role of leader attributed to ITR, which they claim is not justified, in particular with regard to the fact that the same level of increase was applied to the amount of the fine imposed on Bridgestone, which coordinated the cartel for 11 years.
            124. Point 28 of the Guidelines provides that the basic amount of the fine may be increased where the Commission finds that there are aggravating circumstances, such as the role of leader in the infringement.
            125. In that regard, it is apparent from the case-law that the fact that an undertaking acted as leader of a cartel means that it must bear special responsibility in relation to the other undertakings (judgment of 3 March 2011 in Siemens  v Commission , T‑110/07, EU:T:2011:68, paragraph 367).
            126. Furthermore, it is apparent from settled case-law that, when determining the amount of each fine, the Commission has a margin of discretion and is not required to apply any particular mathematical formula for that purpose (judgments of 6 April 1995 in Martinelli  v Commission , T‑150/89, EU:T:1995:70, paragraph 59; of 14 May 1998 in Mo och Domsjö  v Commission , T‑352/94, EU:T:1998:103, paragraph 268, and of 13 July 2011 in Polimeri Europa  v Commission , T‑59/07, EU:T:2011:361, paragraph 251).
            127. In the present case, as has been held in paragraphs 118 and 119 above, the Commission was correct in finding that ITR had played the role of leader in the cartel from 11 June 1999 to 30 September 2001.
            128. In recitals 457 to 463 of the contested decision concerning the aggravating circumstances, the Commission specifically referred, as regards ITR, inter alia to the findings relating to the role played by ITR’s representative during the period from June 1999 to September 2001. The Commission stated in those recitals that ITR had provided coordination for a part of the cartel at the same time as Mr W.’s provision of coordination and pointed out that it was precisely during that period that the cartel had been re-established after undergoing a period of instability.
            129. It is not disputed that the cartel underwent a period of relative inactivity from May 1997 to June 1999. As has been pointed out, in particular in paragraphs 105 and 108 above, it was precisely as from June 1999 that ITR carried out coordination activities as regards some of the participants in the cartel.
            130. Furthermore, the Commission also pointed out, in paragraph 458 of the contested decision, that ITR’s contribution had been crucial with regard to successfully overcoming reluctance on the part of certain members of the cartel and re-establishing the cartel.
            131. As the applicants themselves admit, ITR started to collaborate more closely with Yokohama, by coordinating the participation of the two undertakings within the cartel, although Yokohama had expressed reluctance to rejoin the cartel on account of its bad relations with its Japanese competitor, Bridgestone. That rivalry, which preceded the re-establishment of the cartel in 1999, which ITR’s intervention contributed towards reinstating, was acknowledged by the applicants themselves.
            132. Consequently, the 30% increase applied to the amount of the fine imposed on Parker ITR in respect of its role of leader appears justified by the circumstances of the present case.
            133. In so far as the applicants’ arguments relating to the fact that the same 30% increase was applied to the amount of the fine imposed on Bridgestone, although Bridgestone coordinated the cartel for 11 years, must be understood as claiming infringement of the principle of equal treatment, it is necessary to examine, in accordance with the case-law cited in paragraph 88 above, whether the two situations are comparable.
            134. As regards the 30% increase in the fine imposed on Bridgestone, the Commission refers, in recitals 458 and 462 of the contested decision, to findings that during the period of 11 years from 1986 to 1997, Bridgestone coordinated the cartel, in particular with regard to the Japanese participants, whereas Dunlop/DOM coordinated the cartel with regard to the European participants.
            135. It is thus apparent from the evidence taken into account by the Commission in its findings relating to the aggravating circumstances that, whereas Bridgestone coordinated the cartel with regard to certain participants for a lengthy period of 11 years, ITR coordinated some of the participants in the cartel for two years.
            136. It must be held that the two situations are not factually similar. However, it must be pointed out that, in accordance with the case-law cited in paragraph 88 above, the same treatment of the two situations appears to be objectively justified, in the light of the fact that, although ITR carried out coordination activities for only two years, those activities contributed very significantly towards the successful re-establishment of the cartel. In view of the gravity of the infringement and of the liability for that infringement, it seems justified that the increase in the amount of the fine imposed on Parker ITR in respect of ITR’s coordination activities at a critical point in time for the cartel was as high as that applied to the amount of the fine imposed on Bridgestone in respect of its coordination activities which extended over a longer period.
            137. Accordingly, the Commission cannot be criticised, in exercising its discretion, for having applied the same rate of increase to the amounts of the fines imposed on Parker ITR and Bridgestone.
            138. In any event, even if the Commission were to have erroneously applied an increase of only 30% to the amount of the fine imposed on Bridgestone, in spite of the lengthy period during which Bridgestone undertook the role of leader in the cartel, such an unlawful act, in favour of a third party, would not justify upholding the plea for annulment raised by the applicants. According to settled case-law, respect for the principle of equal treatment or non-discrimination must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see judgment of 3 March 2011 in Siemens  v Commission , T‑110/07, EU:T:2011:68, paragraph 358 and the case-law cited).
            139. In view of the foregoing considerations, the fifth plea put forward by the applicants must be rejected.
            The sixth plea, relating to infringement of the principle of personal liability and to the failure to state reasons which vitiates the increase applied to the amount of the fine imposed on Parker-Hannifin for Parker ITR’s alleged role of leader 
            140. The applicants submit, in essence, that the Commission infringed the principle of personal liability when it took the role of leader attributed to ITR from 11 June 1999 to 30 September 2001 into consideration in order to increase the amount of the part of the fine for which Parker-Hannifin was held to be jointly and severally liable. They further claim infringement of the obligation to state reasons inasmuch as the contested decision does not contain the reasons why a 30% increase was applied to the amount of the fine for which Parker-Hannifin was held liable.
            141. As regards the infringement of the principle of personal liability, it must be borne in mind that it is apparent from settled case-law that, if the unlawful conduct of a subsidiary can be imputed to its parent company, those companies may be regarded, during the period of the infringement, as forming a single economic unit and thus a single undertaking for the purposes of the competition law of the European Union. In those circumstances, the Commission will be entitled to hold the parent company jointly and severally liable for the unlawful conduct of its subsidiary during that period and, as a consequence, for payment of the amount of the fine imposed on the subsidiary (see judgment of 10 April 2014 in Areva and Others  v Commission , C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 49 and the case-law cited).
            142. Furthermore, it has been held that in determining joint and several liability from its external perspective, namely the liability imposed by the Commission on the various persons comprising the undertaking who may be required to pay the whole of the amount of the fine imposed on the undertaking, the Commission is subject to certain restrictions, inter alia, adherence to the principle that penalties must be specific to the offender and the offence, which requires, in accordance with Article 23(3) of Regulation No 1/2003, that the amount of the fine to be paid jointly and severally must be determined by reference to the gravity of the infringement for which the undertaking concerned is held individually responsible and the duration of the infringement (judgment of 10 April 2014 in Commission  v Siemens Österreich and Others , C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 52).
            143. A definition of joint and several liability permitting the Commission to require one of the parent companies to pay a fine punishing infringements for another part of the infringement period, for which an undertaking of which it has never formed part is responsible, is at odds with the principle that the penalty must be specific to the offender and the offence (judgment of 10 April 2014 in Areva and Others  v Commission , C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 126 to 133).
            144. More specifically, a company cannot be held to be responsible for infringements committed independently by its subsidiaries before the date of their acquisition, since the latter must themselves answer for their unlawful conduct prior to that acquisition, and the company which has acquired them cannot be held to be responsible (judgments of 16 November 2000 in Cascades  v Commission , C‑279/98 P, EU:C:2000:626, paragraphs 77 to 79, and of 4 September 2014 in YKK and Others  v Commission , C‑408/12 P, EU:C:2014:2153, paragraph 65).
            145. In the light of the foregoing considerations, it is necessary to examine whether the Commission erred in law when it applied a 30% increase to the amount of the fine for which Parker-Hannifin is jointly and severally liable.
            146. In that regard, it is necessary to bear in mind the finding in paragraph 118 above, that the Commission was correct in finding that ITR was a leader in the cartel in respect of the period from 11 June 1999 to 30 September 2001. Neither ITR nor its successor ITR Rubber was found to have been involved in any leadership activity outside that period, a fact the Commission, moreover, confirmed during the hearing.
            147. Furthermore, it is common ground that ITR Rubber, to which its then parent company, ITR, transferred its assets in the marine hose business on 1 January 2002, was sold to Parker-Hannifin of the Parker group, on 31 January 2002. Consequently, the Commission, in recital 389 of the contested decision, found Parker-Hannifin jointly and severally liable for the conduct of Parker ITR as from the date on which it acquired it, namely 31 January 2002.
            148. In addition, it is necessary to bear in mind the methodology which the Commission followed in the contested decision for the purposes of calculating the amount of the fine.
            149. Accordingly, first, the Commission calculated the basic amount of the fine as follows:
            – in recitals 420 to 428 of the contested decision, the Commission stated that the relevant sales had to be calculated using the average annual value of the sales made by the main marine hoses producers in the European Economic Area (EEA) in the three full business years before the end of the infringement, namely EUR 32 710 069;
            – in the light of the worldwide scope of the infringement, the Commission took the view, in recitals 429 to 433 of the contested decision, that it was necessary to multiply that figure by the worldwide market share held by each participant and that, in the case of Parker ITR, its worldwide market share amounted to 12.1%;
            – as a result of that multiplication, the Commission arrived, in recital 436 of the contested decision, at the sum of EUR 3 955 777, in respect of the relevant sales of Parker ITR;
            – on the basis of the gravity of the infringement, the Commission concluded, in recital 445, that, in view of the circumstances of the case, the nature of the infringement, its geographic scope and the combined market share concerned, 25% of the value of the relevant sales should be taken into consideration;
            – in respect of the duration of the infringement, the Commission found, in recital 448 of the contested decision, that the duration with regard to Parker ITR was 19 years and 5 days and that the duration with regard to Parker-Hannifin was 5 years, 3 months and 3 days, which gave rise to multipliers of 19 and 5.5 respectively;
            – in recital 449, the Commission stated that it was necessary to add an additional sum of 25% of the value of the sales as a further amount for the purposes of deterrence;
            – the Commission stated in recital 455 of the contested decision that the calculations described above gave rise to basic amounts of EUR 19 700 000 in respect of Parker ITR and EUR 6 400 000 in respect of Parker-Hannifin.
            150. Secondly, having obtained two basic amounts, namely a basic amount for Parker ITR and a basic amount for Parker-Hannifin, the Commission stated, in recital 463 of the contested decision, that the basic amount of the fine imposed on Parker ITR should be increased by 30% to take account of aggravating circumstances.
            151. In recital 471 of the contested decision, the Commission increased by 30% the basic amount for Parker ITR, which gave rise to an amount of EUR 25 610 000, and also for Parker-Hannifin, which gave rise to an amount of EUR 8 320 000.
            152. It is apparent from the foregoing considerations that, although the Commission found Parker-Hannifin to be jointly and severally liable only as from 31 January 2002, the basic amount of the fine which had to be paid jointly and severally by Parker-Hannifin in respect of that liability was increased by 30% on the basis of the aggravating circumstance of the role of leader played by ITR from 11 June 1999 to 30 September 2001, a period during which Parker-Hannifin did not have any links with ITR or its successor ITR Rubber.
            153. It is thus apparent from the foregoing that the amount of the fine which had to be paid jointly and severally by Parker-Hannifin was not determined by reference to the gravity of the infringement which was committed individually by its subsidiary ITR Rubber after its acquisition on 31 January 2002.
            154. Consequently, the Commission erred in law when it applied, on the basis of the aggravating circumstance of the role of leader played by ITR from 11 June 1999 to 30 September 2001, a 30% increase to the amount of the fine which had to be paid jointly and severally by Parker-Hannifin.
            155. Accordingly, the sixth plea in law put forward by the applicants must be upheld, without it being necessary to examine the arguments relating to infringement of the obligation to state reasons which they have raised in the context of that plea.
            156. As a result, subparagraph (e) of the first paragraph of Article 2 of the contested decision must be annulled in so far as a 30% increase was applied to the amount of the fine to be paid jointly and severally by Parker-Hannifin, on the basis of the aggravating circumstance of the role of leader played by ITR from 11 June 1999 to 30 September 2001.
            The eighth plea, relating to the calculation of the ceiling of 10% of turnover 
            157. As has been stated in paragraph 31 above, the eighth plea put forward by the applicants must be examined as regards the period prior to 1 January 2002.
            158. In the context of their eighth plea the applicants put forward three complaints, alleging (i) infringement of Article 23(2) of Regulation No 1/2003; (ii) infringement of the principle of personal liability; and, (iii) infringement of the obligation to state reasons.
            159. As regards the first complaint, relating to infringement of Article 23(2) of Regulation No 1/2003, it must be borne in mind that that provision provides that:
            ‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
            (a) they infringe Article 81 [EC] or Article 82 [EC] …
            For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.
            …’
            160. Furthermore, it is necessary to bear in mind, in particular, the case-law deriving from the judgment of 4 September 2014 in YKK and Others  v Commission  (C‑408/12 P, EU:C:2014:2153). In paragraph 60 of that judgment, the Court of Justice stated the following:
            ‘… [W]here … an undertaking regarded by the Commission as responsible for an infringement of Article 81 EC is acquired by another undertaking within which it retains, as a subsidiary, the status of a distinct economic entity, the Commission must take account of the specific turnover of each of those economic entities in order to apply to them, where necessary, the 10% upper limit.’
            161. Furthermore, in paragraphs 63 and 64 of the judgment of 4 September 2014 in YKK and Others  v Commission  (C‑408/12 P, EU:C:2014:2153), the following was held:
            ‘63. It must be observed, in that regard, that the objective sought by the establishment, in Article 23(2), of an upper limit of 10% of the turnover of each undertaking participating in an infringement is, inter alia, to ensure that the imposition of a fine higher in amount than that ceiling should not exceed the capacity of an undertaking to make payment at the time when it is identified as responsible for the infringement and a financial penalty is imposed on it by the Commission.
            64. The finding in the preceding paragraph is confirmed by the second subparagraph of Article 23(2) of Regulation No 1/2003 which requires, as regards the 10% upper limit, that it should be calculated on the basis of the turnover in the business year preceding the Commission decision imposing a penalty for an infringement. Such a requirement is fully respected where, as in this case, that ceiling is determined solely on the basis of the turnover of the subsidiary, in respect of the fine which is imposed exclusively on it, in relation to the period prior to its acquisition by the parent company ... It follows that, in such circumstances, the structural changes in the undertaking responsible as an economic entity are in fact taken into account in the calculation of the fine.’
            162. It is apparent from subparagraph (e) of the first paragraph of Article 2 of the contested decision that Parker-Hannifin was held jointly and severally liable for EUR 8 320 000 of the amount of the fine of EUR 25 610 000 imposed on Parker ITR. It follows from that that the part of the fine that must be regarded as having been imposed exclusively on Parker ITR amounts to EUR 17 290 000. However, in the light of the error which has been held to exist in paragraph 154 above and the finding in paragraph 156 above, the 30% increase applied to the basic amount of the fine of EUR 6 400 000 which had to be paid jointly and severally by Parker-Hannifin must not be taken into account. In the light of the foregoing, the part of the fine which must actually be held to have been imposed exclusively on Parker ITR amounts to EUR 19 210 000.
            163. In view of the allocation of liability between Parker ITR and Parker-Hannifin found to exist by the Commission, as described, in particular, in recital 389 of the contested decision, it must be held that the part of the fine for which Parker ITR was held exclusively liable is due to the participation in the infringement of its economic predecessor, ITR, with regard to the period from 1 April 1986 to 31 December 2001, as well as to its own participation with regard to the period from 1 to 31 January 2002. It is only as from 31 January 2002 that Parker-Hannifin was found to be liable as the parent company of Parker ITR and, on that basis, Parker-Hannifin was held jointly and severally liable with Parker ITR for part of the fine.
            164. In recital 474 of the contested decision, the Commission, relying on the turnover in the section of the decision relating to the undertakings subject to the proceedings, stated that the amounts of the fines imposed on those undertakings did not exceed the ceiling of 10% of turnover provided for by Article 23(2) of Regulation No 1/2003. However, as regards the applicants, the Commission stated, in recital 36 of the contested decision, that Parker-Hannifin’s worldwide consolidated turnover for the business year 2006 ending on 30 June was EUR 7 410 million.
            165. Consequently, it is apparent from the contested decision that the Commission relied solely on Parker-Hannifin’s overall turnover for the purposes of calculating the 10% turnover ceiling provided for by Article 23(2) of Regulation No 1/2003, including as regards the part of the fine for which Parker ITR was held exclusively liable, in particular in respect of the period prior to 1 January 2002.
            166. As the applicants correctly submit, inasmuch as that ceiling was not determined solely on the basis of the turnover of Parker ITR as regards the part of the fine imposed exclusively on it, including, necessarily, as regards the period prior to 1 January 2002, the Commission erred in its application of Article 23(2) of Regulation No 1/2003 (see, to that effect, judgment of 4 September 2014 in YKK and Others  v Commission , C‑408/12 P, EU:C:2014:2153, paragraph 64).
            167. In view of the foregoing, the eighth plea, as circumscribed in paragraph 31 above, must be upheld, without it being necessary to examine the second and third complaints put forward by the applicants in the context of that plea.
            168. Accordingly, subparagraph (e) of the first paragraph of Article 2 of the contested decision must also be annulled in so far as the Commission did not calculate, as regards the part of the fine for which Parker ITR was held exclusively liable with regard to the period prior to 1 January 2002, the 10% turnover ceiling provided for by Article 23(2) of Regulation No 1/2003 solely on the basis of the turnover of Parker ITR.
            The exercise of unlimited jurisdiction 
            169. The unlimited jurisdiction conferred on the General Court, pursuant to Article 229 EC, by Article 31 of Regulation No 1/2003 empowers that Court, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed. It follows that the EU judicature is empowered to exercise its unlimited jurisdiction where the question of the amount of the fine is before it and that that jurisdiction may be exercised to reduce that amount as well as to increase it (judgment of 8 February 2007 in Groupe Danone  v Commission , C‑3/06 P, EU:C:2007:88, paragraphs 61 and 62).
            170. It should be observed that, by its nature, the fixing of the amount of a fine by the Court is not an arithmetically precise exercise. Furthermore, the Court is not bound by the Commission’s calculations or by its Guidelines when it adjudicates in the exercise of its unlimited jurisdiction. It must make its own appraisal, taking account of all the circumstances of the case (see judgment of 5 October 2011 in Romana Tabacchi  v Commission , T‑11/06, EU:T:2011:560, paragraph 266 and the case-law cited).
            171. Furthermore, under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard must be had both to the gravity and to the duration of the infringement.
            172. In addition, as stated in Article 49 of the Charter of Fundamental Rights of the European Union, the severity of penalties must not be disproportionate to the offence.
            173. Article 23(2) of Regulation No 1/2003 provides that the amount of the fine imposed cannot, in addition, exceed 10% of the total turnover of the undertaking in the preceding business year.
            174. In that regard, it is apparent from the case-law, in particular t hat deriving from the judgment of 4 September 2014 in YKK and Others  v Commission  (C‑408/12 P, EU:C:2014:2153), that, for the purposes of applying the ceiling provided for by Article 23(2) of Regulation No 1/2003, it is necessary to take into account the turnover of the subsidiary in question (see, to that effect, judgment of 4 September 2014 in YKK and Others  v Commission , C‑408/12 P, EU:C:2014:2153, paragraph 97). Accordingly, since it is not the consolidated turnover of the Parker group, but solely that of the subsidiary Parker ITR which must be taken into account for the purpose of adjusting the amount of the fine to that subsidiary’s capacity to make payment, it is necessary, for the purpose of calculating the 10% ceiling, to rely on the total turnover of Parker ITR, including captive sales within the group.
            175. The Court of Justice has also held that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as, inter alia, the conduct of each of the undertakings and the role played by each of them in the establishment of the concerted practices (see, to that effect, judgment of 8 December 2011 in Chalkor  v Commission , C‑386/10 P, EU:C:2011:815, paragraph 56 and the case-law cited). 
            176. In the judgment on appeal, the Court of Justice set aside, inter alia, paragraphs 2 and 3 of the operative part of the judgment of the General Court by which the fine that the Commission imposed on Parker ITR and on Parker-Hannifin was annulled and, as a result of the General Court’s findings relating to the exercise of its unlimited jurisdiction, the amount of the fine imposed on Parker ITR was set at EUR 6 400 000, for EUR 6 300 000 of which Parker-Hannifin was jointly and severally liable.
            177. Following the referral of their case back to the General Court, the applicants submit that the pleas that they have put forward justify the annulment of the contested decision and, as a result, the exercise by the General Court of its unlimited jurisdiction to reduce the amount of the fine imposed on them.
            178. In the present case, having regard to the General Court’s assessment in the context of the sixth and eighth pleas and to the errors which have been held to exist in paragraphs 154 and 166 above, the General Court considers it appropriate, in addition to the partial annulment of the contested decision which it has decided on in paragraphs 156 and 168 above, to exercise the unlimited jurisdiction conferred upon it by Article 31 of Regulation No 1/2003 and to substitute its own appraisal for the Commission’s as regards the amount of the fine which must be imposed on the applicants.
            179. Accordingly, the General Court considers it appropriate to take the following circumstances into account.
            180. First, it is apparent to the requisite evidential standard from the case-file that the cartel constituted a serious infringement, in the light of the fact that its objectives were the allocation of tenders; price-fixing; quota-setting; the fixing of sales conditions; the sharing of geographic markets; and the exchange of sensitive information on prices, sales volumes and procurement tenders. Furthermore it was a worldwide cartel.
            181. Secondly, as regards specifically the duration of the infringement, first, it must be borne in mind that ITR Rubber (which later became Parker ITR) was correctly held liable for the participation of its economic predecessor ITR in the infringement with regard to the period from 1 April 1986 to 31 December 2001 and for its own participation in the infringement with regard to the period from 1 January 2002 to 2 May 2007. Secondly, Parker-Hannifin was correctly held jointly and severally liable, as the parent company of Parker ITR, with regard to the period from 31 January 2002 to 2 May 2007.
            182. Thirdly, it has been established that ITR played the role of leader in the cartel from 11 June 1999 to 30 September 2001, during a critical period for the cartel, which followed a period of relative inactivity, and contributed very significantly towards the successful re-establishment of the cartel. By contrast, neither ITR nor its successor ITR Rubber has been found to have been involved in any leadership activity outside that period.
            183. In the light of those circumstances, the Court holds that a fine in the amount of EUR 19 210 000 such as that which the Commission imposed exclusively on Parker ITR makes it possible effectively to penalise the unlawful conduct which has been held to exist, in a manner which is not negligible and remains sufficiently deterrent. Any fine above that amount would be disproportionate with regard to that infringement.
            184. However, on account of the legal maximum of 10% of total turnover provided for by Article 23(2) of Regulation No 1/2003, it is necessary to take into account, for the purposes of applying that article, the total turnover of the undertaking, namely Parker ITR, in the business year preceding the decision imposing the fine in question, in the case of Parker ITR, the business year 2008, which ended on 30 June. Accordingly, it is apparent from the balance sheet of Parker ITR as at 30 June 2008, which is attached as an annex to the observations which they submitted following the judgment on appeal, in particular from page 18 thereof, that the total turnover, including captive sales, for the business year 2008 was EUR 135 457 283.
            185. The General Court thus holds that the amount of the fine for which Parker ITR must be held exclusively liable in the present case must not exceed 10% of the turnover set out in paragraph 184 above, namely EUR 13 545 728.
            186. Lastly, the General Court holds that it is necessary to reduce the amount of the fine for which Parker-Hannifin must be held jointly and severally liable in the light, in particular, of the gravity of the infringement and of the fact that its participation in the infringement, as the parent company of Parker ITR, began only when it acquired Parker ITR on 31 January 2002, when Parker ITR was no longer playing the role of leader in the cartel, and to set the amount of that fine at EUR 6 400 000.
            187. Consequently, the General Court holds that the total amount of the fine imposed on Parker ITR must be set at EUR 19 945 728, for EUR 6 400 000 of which Parker-Hannifin must be held jointly and severally liable.
            188. The action is dismissed as to the remainder.
            Costs 
            189. Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
            190. In the light of the circumstances of the present case, it must be held that each party is to bear its own costs.
            
            Operative part
            On those grounds,
            THE GENERAL COURT (Sixth Chamber)
            hereby:
            1. Annuls subparagraph (e) of the first paragraph of Article 2 of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 — Marine hoses) in so far as a 30% increase was applied to the amount of the fine to be paid jointly and severally by Parker-Hannifin Corp., on the basis of the aggravating circumstance of the role of leader played by ITR SpA from 11 June 1999 to 30 September 2001 and in so far as the European Commission did not calculate, as regards the part of the fine for which Parker ITR was held exclusively liable with regard to the period prior to 1 January 2002, the ceiling of 10% of turnover provided for by 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] solely on the basis of the turnover of Parker ITR Srl; 
            2. Sets the amount of the fine imposed on Parker Hannifin Manufacturing Srl, formerly Parker ITR, at EUR 19 945 728, for EUR 6 400 000 of which Parker-Hannifin is jointly and severally liable; 
            3. Dismisses the action as to the remainder; 
            4. Orders Parker Hannifin Manufacturing, Parker-Hannifin and the Commission to bear their own costs.