CELEX: 62006TJ0197
Language: en
Date: 2011-06-16
Title: Judgment of the General Court (Sixth Chamber, extended composition) of 16 June 2011. # FMC Corp. v European Commission. # Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Imputability of the infringement - Rights of the defence - Obligation to state the reasons on which the decision is based. # Case T-197/06.

Case T-197/06
      FMC Corp.
      v
      European Commission
      (Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the infringement – Rights of the defence – Duty to state reasons)
      Summary of the Judgment
      1.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules
      (Arts 81 EC and 253 EC)
      2.      Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for
            assessment
      (Art. 81 EC)
      3.      Competition – Agreements, decisions and concerted practices – Proof – Statements by employees of an undertaking made exclusively
            in the interest of the undertaking 
      (Art. 81 EC)
      4.      Competition – Administrative procedure – Observance of  the rights of the defence – Access to the file – Scope – Non‑disclosure
            of material relied on by the Commission by way of confirmation of an undertaking’s liability – Effect on the legality of the
            finding of liability – No effect
      (Art. 81(1) EC)
      1.      Where a decision taken in application of Article 81 EC relates to several addressees and raises a problem with regard to liability
         for the infringement, it must include an adequate statement of reasons with respect to each of its addressees, in particular
         those of them who, according to the decision, must bear the liability for the infringement. Thus, in regard to a parent company
         held jointly and severally liable for the infringement, such a decision must contain a detailed statement of reasons for attributing
         the infringement to that company.
      
      None the less, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and
         it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision.
      
      (see paras 45, 59)
      2.      The conduct of a subsidiary may be attributed to the parent company in particular where that subsidiary, despite having a
         separate legal personality, 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, regard being had in particular to the economic, organisational
         and legal links between those two legal entities. 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 Article 81 EC.
      
      In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules
         of the European Union, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there
         is a presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary.
      
      In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company
         in order to avail itself of the presumption that the parent exercises decisive influence over the commercial policy of the
         subsidiary. The Commission will then be able to regard the parent company as liable for the infringement in question, 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. In that regard, mere prima facie evidence cannot suffice to rebut the presumption in question.
      
      Thus, where the parent company adduces a body of evidence to establish that its subsidiary was independent, by demonstrating
         that the subsidiary does not, in essence, comply with the instructions which it issues and, as a consequence, acts independently
         on the market, the Commission will not be able to impute to it the conduct of its subsidiary unless the Commission rebuts
         that evidence.
      
      In order to assess whether a subsidiary decides independently upon its own conduct on the market, account must be taken of
         all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company,
         which may vary from case to case and which cannot, therefore, be exhaustively listed. It is not necessary to restrict that
         assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, the presumption relating to the exercise of decisive influence
         cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy,
         without receiving instructions. It follows that the independence of the subsidiary cannot be established merely by showing
         that it manages the specific aspects of its policy relating to the marketing of the products concerned by the infringement.
         Similarly, given that the independence of the subsidiary is not to be assessed solely by reference to the operational management
         aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific
         information policy on the market concerned is not sufficient to show that it was independent.
      
      Moreover, the fact that the parent company’s corporate objects enable the conclusion that it constituted a holding company
         whose role under its statutes was to manage its shareholdings in the capital of other companies is not sufficient, in itself,
         to rebut the presumption in question.
      
      In addition, the absence of overlap between the personnel involved in the operational management of the undertaking is not
         capable of demonstrating that its subsidiary was independent, since the assessment of that independence does not relate solely
         to the commercial policy stricto sensu of the undertaking. 
      
      However, an overlap between individuals on the boards of the companies concerned does constitute relevant evidence of the
         lack of independence of the subsidiary. The same is true of the direct participation of one of the individuals concerned in
         the illicit contacts. Indeed, the participation of a member of staff of the parent company in collusive meetings may amount
         to evidence that the parent company knew of its subsidiary’s participation in the infringement and, therefore, that it was
         actively implicated in the anti‑competitive conduct; that evidence can therefore be used, a fortiori, as support for the contention that it exercised decisive influence over the subsidiary.
      
      (see paras 96-100, 104-106, 108-109, 117-118, 130, 143, 145)
      3.      In competition matters, the ascribing, on a case‑by‑case basis, of significant probative value to statements made in the context
         of a leniency application is explained by the consideration that they are an admission of infringement and therefore, as a
         rule, statements which run counter to the interests of the declarant. Accordingly, where statements by employees of an undertaking
         are made exclusively in the interest of the undertaking, they cannot be credited with particularly great probative value,
         comparable to that ascribed to certain statements made by the undertakings which made leniency applications, since the context
         of those statements is not the same as that of such a leniency application.
      
      (see paras 156-157)
      4.      Where an applicant has not been afforded an opportunity, during the administrative procedure for infringement of the competition
         rules, to submit its observations on the material relied on by the Commission in support of its finding of the applicant’s
         joint and several liability, that material must be disallowed as evidence. None the less, with respect to the infringement
         of the rights of the defence, the applicant must still show that the result at which the Commission arrived in its decision
         would have been different if that undisclosed material had to be disallowed as evidence. 
      
      Where material is relied on by the Commission only by way of confirmation, the fact that it must be disallowed as evidence
         cannot affect the legality of the finding of the applicant’s liability, where that finding is demonstrated to the requisite
         legal standard by other considerations set out in the Commission’s decision.
      
      (see paras 162-166)
JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)
      16 June 2011 (*)
      
      (Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the infringement – Rights of the defence – Obligation to state the reasons on which the decision is based)
      In Case T‑197/06,
      FMC Corp., established in Philadelphia, Pennsylvania (United States), represented by C. Stanbrook QC and Y. Virvilis, lawyer,
      
      applicant,
      v
      European Commission, represented initially by F. Arbault, and subsequently by V. Di Bucci, V. Bottka and X. Lewis, acting as Agents, and by M.
         Gray, Barrister,
      
      defendant,
      APPLICATION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article
         81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate), in so far as it concerns
         the applicant and, in the alternative, a reduction of the fine imposed on the applicant, 
      
      THE GENERAL COURT (Sixth Chamber, Extended Composition),
      composed of V. Vadapalas (Rapporteur), acting as President, A. Dittrich and L. Truchot, Judges,
      Registrar: J. Palacio González, Principal Administrator,
      having regard to the written procedure and further to the hearing on 19 May 2010,
      gives the following
      Judgment
       Facts of the case
      1        The applicant, FMC Corp., is a United States undertaking which wholly controls, through FMC Chemicals Netherlands BV, formerly
         FMC Chemical Holding BV, FMC Foret SA, a company incorporated under Spanish law. At the material time FMC Foret SA sold hydrogen
         peroxide (‘HP’) and sodium perborate (‘PBS’). 
      
      2        In November 2002 Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and
         PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel
         cases (OJ 2002 C 45, p. 3). 
      
      3        Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003
         at the premises of certain undertakings.
      
      4        On 26 January 2005 the Commission sent a statement of objections to the applicant and to the other undertakings concerned.
         
      
      5        After the hearing of the undertakings concerned, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating
         to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding
         AB, EKA Chemicals AB, Degussa, Edison SpA, the applicant, FMC Foret, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA,
         Caffaro Srl, Solvay SA, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/38.620 — Hydrogen peroxide
         and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006. 
      
       The contested decision
      6        The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement
         of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product,
         PBS (recital 2 of the contested decision).
      
      7        The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company
         information, limiting and controlling production as well as potential and actual production capacities, allocating market
         shares and customers and fixing and monitoring adherence to target prices. 
      
      8        The applicant was held liable for the infringement ‘jointly and severally’ with FMC Foret (recitals 389 to 395 to the contested
         decision).
      
      9        To calculate the amounts of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting
         fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).
         
      
      10      The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital
         452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).
      
      11      As part of a differentiating approach, the applicant and FMC Foret were placed in the third of four categories, in respect
         of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision). 
      
      12      Since, according to the Commission, the applicant and FMC Foret participated in the infringement from 29 May 1997 to 13 December
         1999, namely a period of two years and seven months, the starting amount of their fine was increased by 25% (recital 467 of
         the contested decision). 
      
      13      No aggravating or attenuating circumstance was found to apply in the applicant’s case.
      
      14      Article 1(f) of the contested decision states that the applicant infringed Article 81(1) EC and Article 53 of the EEA Agreement
         by participating in the infringement concerned from 29 May 1997 until 13 December 1999.
      
      15      In Article 2(d) of the contested decision, the Commission imposed on the applicant, jointly and severally with FMC Foret,
         a fine of EUR 25 million.
      
       Procedure and forms of order sought by the parties
      16      By application lodged at the Registry of the Court on 18 July 2006, the applicant brought the present action.
      
      17      The composition of the Chambers of the Court having been altered, the Judge Rapporteur was assigned to the Sixth Chamber,
         and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).
      
      18      As a member of the Chamber was unable to sit, 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.
      
      19      Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral
         argument and replied to the questions put by the Court at the hearing which took place on 19 May 2010. 
      
      20      In accordance with Article 32 of the Rules of Procedure, one member of the chamber being prevented from attending the deliberations,
         the most junior Judge within the meaning of Article 6 of the Rules of Procedure abstained from taking part in the deliberations
         and the deliberations of the Court were conducted by the three Judges who have signed this judgment.
      
      21      The applicant claims that the Court should:
      
      –        annul the contested decision, in so far as it concerns the applicant;
      –        in the alternative, reduce the fine imposed on it;
      –        order the Commission to pay the costs.
      22      The Commission contends that the Court should:
      
      –        dismiss the application;
      –        order the applicant to pay the costs.
       Law
       The claim that the contested decision should be annulled
      23      In support of its claim that the contested decision should be annulled, the applicant puts forward two pleas, alleging, first,
         infringement of the obligation to state reasons and, second, errors of law and of assessment vitiating the finding that the
         applicant is liable for the infringement in question.
      
       First plea: infringement of the obligation to state reasons 
      –       Arguments of the parties
      24      The applicant submits that, where a decision finds that a parent company is liable for the acts of another company, in particular
         by application of the presumption arising from the control of the capital of a subsidiary by its parent company, the statement
         of reasons must be particularly comprehensive. 
      
      25      The Commission was therefore not entitled merely to refer to the presumption, but was required to give adequate reasons capable
         of explaining how that presumption had not been rebutted by the arguments and evidence to the contrary put forward by the
         applicant. 
      
      26      However, the reasons put forward by the Commission in the contested decision in this respect are ‘formally inadequate’ and
         do not meet the requirements of Article 253 EC. 
      
      27      Whilst the Commission referred to the links between the companies concerned, relating to the functions assumed by three persons
         within the applicant, FMC Foret and FMC Chemical Holding (recitals 391 and 394 of the contested decision), it did not explain
         how those circumstances were capable of rebutting the arguments to the contrary put forward by the applicant.
      
      28      In addition, the applicant submitted arguments rebutting the circumstances set out in recital 391 of the contested decision.
         In recital 394 of the contested decision, the Commission merely rejected those arguments, without explaining its reasons for
         doing so. 
      
      29      By merely reproducing the evidence advanced on both sides, the Commission does not set out the considerations on which it
         concluded that the presumption had not been rebutted by the applicant.
      
      30      Furthermore, the reasons put forward by the Commission in recital 394 of the contested decision are not sufficient to support
         a finding that the applicant was jointly and severally liable.
      
      31      First, the applicant referred to the existence of separate organisational structures, tending to demonstrate that the parent
         company and the subsidiary operated independently in different areas of activity in relation to the infringement. Yet the
         Commission failed to explain why, in the present case, that factor was not sufficient to rebut the presumption in question.
      
      32      Second, the applicant submitted statements by its employees, confirming that FMC Foret operated independently. The Commission
         itself recognised, in recital 394 of the contested decision, that those statements demonstrated the independent status of
         FMC Foret. However, the contested decision contains no reason for rejecting them.
      
      33      Third, the Commission’s assertion that the applicant was also involved in the production of HP and PBS (recital 394 of the
         contested decision) is incorrect and is insufficient to support the conclusion that the applicant exercised decisive influence
         over FMC Foret. The mere fact that companies produce the same products does not mean that they adopt a common commercial policy.
         Furthermore, the applicant produced evidence to the contrary, which was not challenged by the Commission, as to the distinct
         geographic nature of the markets, the different location of production sites, the historical evolution of the business and
         the profile of the customers. 
      
      34      Fourth, the Commission’s statement that FMC Foret is a European subsidiary of the applicant (recital 394 of the contested
         decision) adds nothing to the fact that the subsidiary is wholly owned. The evidence produced by the applicant shows that
         there was no consultation or cooperation about the two companies’ production of HP.
      
      35      The reasoning set out in the contested decision is not only ‘inadequate’, but contains no explanation for rejecting the evidence
         submitted by the applicant. If the Commission now states, in its defence, that that evidence was not sufficient to rebut the
         presumption in question, that assertion is not to be found in the contested decision. 
      
      36      With respect to the circumstances to which the Commission refers in recital 391 of the contested decision, the applicant stated
         that, although one of the employees of FMC Foret, Mr A.B., was appointed as vice‑president of the applicant, this was not
         an executive position, as his functions within the applicant and FMC Foret were purely administrative. Mr A.B. was merely
         responsible for overseeing the business and corporate strategy of the undertaking and was not involved in its day‑to‑day operations.
         Likewise, the fact that two other persons were directors, for limited periods, of both FMC Foret and FMC Chemical Holding
         is of no significance, as the only purpose of the latter undertaking is to hold shares and it does not exercise any commercial
         activity. 
      
      37      In submitting that evidence to the contrary, the applicant transferred the burden of proof to the Commission. However, the
         contested decision contains no reason as to why those arguments were rejected. 
      
      38      In the applicant’s contention, it is necessary to reject the reasons put forward by the Commission for the first time before
         the Court, according to which the fact that Mr A.B. was made responsible for overseeing the business and corporate strategy
         of the subsidiary demonstrates that decisive influence was exercised. In any event, those new reasons relate solely to the
         applicant’s theoretical ability to exercise decisive control over FMC Foret, whereas the applicant’s argument was that the
         person concerned, Mr A.B., did not in fact exercise decisive control in the day-to-day operations or in the areas relating
         to the alleged infringement. 
      
      39      The question of decisive influence must be examined in the context of an activity relating to the infringement. The absence
         of involvement in day-to-day operations indicates that no decisive influence was exercised in relation to such an activity.
         Thus, the mere fact that an employee is made responsible for overseeing the business and corporate strategy of an undertaking
         is not sufficient to support the conclusion that decisive influence was actually exercised.
      
      40      Mr A.B., as chairman and managing director of the subsidiary, was not necessarily involved in the day-to-day operations of
         its business. In the present case, it is clear from the evidence submitted by the applicant that he simply oversaw the business
         and corporate strategy of the undertaking. The position of Mr W.B., a member of the board of FMC Chemical Holding, is not
         relevant either, since the only purpose of that company was to hold shares in FMC Foret. Mr G.W., one of the directors of
         FMC Chemical Holding, was not employed within the applicant. 
      
      41      In the applicant’s submission, where a decision finding an infringement is based on the existence of a relationship of control
         by one undertaking over another, the Commission is required to set out the considerations which led it to conclude that such
         control exists. In the present case, the Commission failed to meet that requirement, since it merely reiterated the position
         which it took in the statement of objections, without explaining why it rejected the arguments and evidence to the contrary
         produced by the applicant. 
      
      42      The Commission contests the applicant’s arguments.
      
      –       Findings of the Court
      43      In the first plea, the applicant claims that, in the contested decision, the Commission did not set out sufficient reasons
         for finding that the applicant was liable for the infringement in question and, in particular, that the Commission did not
         explain the reasons for rejecting the evidence adduced to rebut the presumption arising from the fact that the subsidiary
         which took part in the infringement was wholly owned by the applicant. 
      
      44      According to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue
         and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted it in such a
         way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise
         its power of review. 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 (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).
      
      45      Where, as in the present case, a decision taken in application of Article 81 EC relates to several addressees and raises a
         problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each
         of its addressees, in particular those of them who, according to the decision, must bear the liability for the infringement.
         Thus, in regard to a parent company held jointly and severally liable for the infringement, such a decision must contain a
         detailed statement of reasons for attributing the infringement to that company (see, to that effect, Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraphs 78 to 80). 
      
      46      In the present case, in recitals 370 to 379 of the contested decision, the Commission, referring to the case-law of the European
         Union, summarised the principles it intended to apply to identify the addressees of the contested decision.
      
      47      The Commission recalled inter alia that a parent company can be held liable for the unlawful conduct of a subsidiary in so
         far as the 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. The Commission stated that it can generally assume that a wholly‑owned
         subsidiary essentially follows the instructions given by its parent company and that the latter can rebut the presumption
         by adducing evidence to the contrary (recital 374 of the contested decision).
      
      48      As regards the finding that the applicant was liable for the infringement in question, the Commission stated that, in the
         statement of objections, it had based that conclusion on the fact that FMC Foret was a subsidiary wholly owned, although indirectly,
         by the applicant (recital 390 of the contested decision).
      
      49      The Commission pointed out that, in that statement of objections, it had also relied on the fact that some of the management
         positions in the companies concerned were held by the same persons, namely as a result of the positions held by Messrs A.B.,
         W.B. and G.W. Furthermore, the Commission noted the role of Mr A.B., who was both managing director and chairman of FMC Foret
         and vice-president of the applicant and had participated in certain cartel meetings (recital 391 of the contested decision).
      
      50      Next, the Commission referred to evidence put forward by the applicant in order to demonstrate its subsidiary’s independence
         (in recitals 392 and 393 of the contested decision). The Commission stated that it could not accept the applicant’s arguments,
         since the exercise of decisive influence in question did not follow only from the entire ownership of the subsidiary’s capital,
         but also from the links between the companies concerned, noted in recital 391 of the contested decision, that the applicant’s
         arguments did not suffice to establish that its subsidiary was independent and that, in any event, the information in its
         possession, considered as a whole, corroborated the conclusion that the applicant had exercised such influence over its subsidiary
         (recital 394 of the contested decision).
      
      51      Lastly, the Commission stated that, in view of those considerations, it was maintaining its conclusion that the applicant
         was jointly and severally liable for the infringement in question (recital 395 of the contested decision).
      
      52      The Court considers that the aforementioned reasons disclose in a clear and unequivocal fashion the reasoning by which the
         applicant was held jointly and severally liable for the infringement. 
      
      53      As regards, first, the applicant’s complaint alleging the equivocal nature of the reasoning which led to its being held liable,
         the Court would point out that it is clear from recitals 390 to 395 of the contested decision that the Commission maintained
         the conclusion set out in the statement of objections that the decisive influence exercised by the applicant over its subsidiary
         stemmed from the presumption arising from its 100% ownership of the subsidiary, since the evidence put forward by the applicant
         during the administrative procedure had not sufficed to establish that its subsidiary was independent and, therefore, to rebut
         that presumption.
      
      54      Moreover, the Commission drew attention, in recitals 391 and 394 of the contested decision, to the existence of certain additional
         indicia stemming from the links in terms of personnel between the companies concerned and in particular from the position
         of Mr A.B., who took part in the illicit contacts. 
      
      55      The Court considers that those reasons explain sufficiently the circumstances in which the applicant was held liable for the
         infringement.
      
      56      As regards, second, the complaint alleging insufficient reasons for the rejection of the evidence put forward by the applicant
         to rebut the presumption in question, the Court observes that it is clear from recitals 392 to 394 of the contested decision
         that the Commission took account of the evidence in question. 
      
      57      After describing, in recitals 392 and 393 of the contested decision, the arguments made by the applicant in its reply to the
         statement of objections, the Commission found, in recital 394 of the contested decision, that the evidence which emerged from
         those arguments did not constitute adequate proof that the subsidiary was independent and that the information used, viewed
         as a whole, had indeed corroborated the conclusion based on the presumption in question, and that that conclusion therefore
         had to be maintained. 
      
      58      The Court considers that, by those reasons, the Commission replied to the essential points of the applicant’s arguments and
         took into consideration the evidence which the applicant had adduced.
      
      59      The Commission cannot be criticised for not replying specifically to each individual argument relied on by the applicant.
         In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and
         it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision
         (Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 64; see also, to that effect, Commission v Sytraval and Brink’s France, paragraph 44 above, paragraph 64). 
      
      60      Moreover, the Court observes that the applicant’s complaint alleging that the statement of reasons in question is ‘inadequate’
         is based in part on its argument that it succeeded in rebutting the presumption in question. 
      
      61      However, that argument concerns the substantive legality of the contested decision and cannot be taken into account in the
         context of the review of the statement of reasons. 
      
      62      Thus, in so far as the applicant criticises, on the substance, the Commission’s rejection of the arguments and evidence put
         forward to rebut the presumption in question, its arguments must be analysed in the context of the second plea, alleging an
         error of law and an error of assessment. 
      
      63      In the light of all the above, the first plea must be rejected.
      
       The second plea: error of law and error of assessment 
      –       Arguments of the parties
      64      The applicant contends that, in so far as the Commission found the applicant liable in the contested decision, that decision
         is flawed both in law and in fact.
      
      65      First, the Commission appraised the evidence incorrectly, by giving different weight to statements provided by the applicant
         and statements provided by undertakings which made leniency applications. Second, the Commission relied on an incorrect test
         when assessing the control exercised by the applicant over its subsidiary. Third, it used evidence which did not relate to
         the relevant period. Fourth, it used evidence which was not notified to the applicant, in breach of its rights of defence.
      
      66      The Commission incorrectly assessed each piece of evidence separately, instead of making a global assessment.
      
      67      The Commission failed to take account of the fact that the exercise of decisive influence must be assessed by reference to
         the activity relating to the infringement. The evidence submitted by the applicant shows that FMC Foret was itself responsible
         for its own marketing of HP and of PBS, which, moreover, was not marketed by the applicant.
      
      68      It follows from recital 394 of the contested decision that the Commission accepted that it was required to show more than
         merely that the applicant owned 100% of the capital of the subsidiary. The central issue is therefore whether the other evidence
         supported the conclusion that the applicant had exercised decisive influence over FMC Foret.
      
      69      In that regard, in the first place, the Commission incorrectly stated that the fact that the applicant had ‘a separate department
         for the manufacturing of HP to be shipped to the American market … [was] not sufficient to establish that [it] did not exercise
         any control over the European [subsidiary]’ (recital 394 of the contested decision). The applicant did not submit that it
         had a separate ‘department’, but maintained that there were ‘[t]wo entirely separate organisation[al] structures for producing
         and selling HP’.
      
      70      The Commission thus distorted the applicant’s argument and made an incorrect finding for which there was no evidence.
      
      71      According to the applicant, its operations were split into branches and the markets served by those branches were determined
         by the location of production and the nature of the product. In the case of HP, its production is sold locally, as the logistics
         of transporting that product do not allow it to be shipped from the United States to Europe or vice versa. FMC Foret was not
         a ‘department’ of the applicant and did not even have a structure to report its activities to the applicant. There is no evidence
         in the file of any ‘departmental separation’ between the HP activities of the applicant and those of FMC Foret. 
      
      72      It follows from the witness evidence of employees submitted by the applicant that FMC Foret had developed its business and
         its product portfolio entirely separately from the applicant’s business and product portfolio. In most areas, there was no
         product overlap between the two companies. In the case of HP, the markets and customers were entirely different owing to the
         specific characteristics of the product and the location of production. The applicant provided annual corporate directories
         which showed that there was no overlap in personnel as between the applicant and FMC Foret in any area at any time during
         the relevant period. That witness evidence shows the independent and autonomous nature of FMC Foret’s operations. 
      
      73      Given the two entirely separate organisational structures for the marketing of HP, there was no reason to suppose that the
         persons managing one of those structures exercised decisive influence over the management of the other. The Commission has
         failed to demonstrate that, in spite of the existence of the two separate structures, the applicant did in fact exercise decisive
         influence over FMC Foret in connection with the marketing of HP.
      
      74      In the second place, the Commission made a manifest error of assessment in finding that FMC Foret’s commercial activities
         were ‘an integrated part’ of those of the applicant, in so far as the applicant ‘[was] equally involved in producing the HP
         and PBS’ and that FMC Foret ‘operate[d] as [the applicant’s] European subsidiary in this regard’ (recital 394 of the contested
         decision). 
      
      75      A production overlap does not permit the inference that decisive influence was exercised. It cannot be assumed that two independent
         producers located in different countries control or exercise decisive influence over each other, merely because one of the
         products manufactured is the same. 
      
      76      In any event, the production overlap exists solely in relation to HP and not to PBS. That is confirmed by the witness evidence
         submitted by the applicant. 
      
      77      In asserting that the applicant produced both HP and PBS, the Commission probably relied on a statement made by one of the
         applicant’s employees, Mr T.B., in the following terms:
      
      ‘[FMC] Foret, moreover, sells a different product mix than that sold by [the applicant]. [The applicant], for example, does
         produce [PBS] in the United States, while [FMC Foret] has for many years produced and sold [PBS] in Europe.’
      
      78      In the applicant’s submission, that statement contains an obvious ‘typographical error’ and should read: ‘[The applicant],
         for example, does [not] produce [PBS]’. The Commission incorrectly relied on that statement, containing an obvious ‘typographical
         error’, and disregarded other witness evidence stating the contrary. 
      
      79      The applicant maintains that the fact that the only product manufactured by both companies concerned was HP and that they
         did not operate on the same geographic markets led to the conclusion that they did not have to coordinate their activities.
      
      80      Nor is the Commission’s assertion that FMC Foret acted as the applicant’s subsidiary relevant, since some subsidiaries, such
         as FMC Foret, are regarded as ‘investments’ and not as forming part of the parent company’s activities. 
      
      81      The fact that a large company such as the applicant acquires another company solely for investment purposes means that it
         has no intention of being involved in its day-to-day operations. The relationship between the applicant and FMC Foret is a
         typical example of cases, such as acquisitions by investment funds, in which a company acquires 100% of the capital of another
         company without exercising decisive influence over its management. 
      
      82      In the third place, in finding that the applicant itself presented FMC Foret’s activities ‘as an integrated part of its business’,
         the Commission wrongly relied on new incriminating evidence, namely information taken from the applicant’s website (recital
         394 and footnote 379 of the contested decision). 
      
      83      First, that material relating to 2005 and 2006 is not capable of showing that the applicant exercised decisive influence over
         FMC Foret between 1997 and 1999. Second, the applicant did not have the opportunity to comment on that material during the
         administrative procedure. In using such material, the Commission therefore introduced new evidence against the applicant which,
         moreover, related to the period after the infringement. 
      
      84      In the fourth place, in asserting that the statements made by the applicant’s employees were not sufficient to show that FMC
         Foret operated on an autonomous basis (recital 394 of the contested decision), the Commission rejected that evidence on the
         sole ground that it was demonstrated through statements by employees of the applicant. The Commission’s dismissal of that
         evidence is incomprehensible, since evidence relating to FMC Foret’s autonomy would inevitably come from those who were involved
         in its management. 
      
      85      Furthermore, in stating that FMC Foret’s independent status was ‘only demonstrated through [the] statements’ in question,
         the Commission accepted that those statements did in fact demonstrate FMC Foret’s independence and were therefore sufficient
         to rebut the presumption. 
      
      86      In addition, the dismissal of the evidence in question, on the sole ground that it came from statements made by employees,
         cannot be reconciled with the fact that the Commission used statements made by employees of the undertakings which made leniency
         applications. 
      
      87      Thus, the Commission ‘discriminated’ in its treatment of the evidence submitted by the applicant, by failing to apply the
         same rules as those which it applied to the statements of the undertakings which made leniency applications. The Commission
         ought to have acknowledged the particular credibility of the statements of the applicant’s employees, in view of the fact
         that those statements emanated from direct witnesses, occupying posts in the highest ranks of the undertakings concerned,
         that the information was provided after mature reflection and that there was a body of consistent evidence. 
      
      88      The Commission failed to make an objective assessment of the qualitative value of the witness statements in question, and
         in particular to take into account the fact that it was direct evidence and that the witnesses accepted personal responsibility
         for their evidence and were prepared to be questioned at the hearing. 
      
      89      Furthermore, the evidence of FMC Foret’s autonomy does not emerge only from the statements by the applicant’s employees, but
         also from other supporting evidence, in particular:
      
      –        the fact that all the board minutes of FMC Foret were drawn up in Spanish, which is a unique case within the applicant, and
         that the content of those minutes also shows that operational matters were never discussed, as the effective and practical
         control of FMC Foret was entrusted to its managers;
      
      –        the fact that the corporate directories for each company, produced by the applicant for each of the years in issue, show that
         there were no employees working for both companies at the same time and, thus, that there were no areas in which the two companies
         collaborated institutionally;
      
      –        the fact that FMC Foret’s activities and product range were developed independently of the applicant’s and that they respond
         to FMC Foret’s particular opportunities and customer requirements: FMC Foret began to produce PBS long before the applicant
         became a shareholder and therefore has a unique product range which overlaps the applicant’s product range to only a small
         extent, the development of those products was not the consequence of collaboration between the two companies and FMC Foret’s
         own literature (corporate brochure) confirms the independent nature of the operations; 
      
      –        the fact that the customers of each company are geographically different.
      90      In the contested decision, the Commission failed to examine certain arguments put forward by the applicant. It did not even
         deal with the fact that the board minutes of FMC Foret were drawn up in Spanish, that no employee had worked for both companies
         at the same time, that FMC Foret had developed its business independently of the applicant’s, that FMC Foret had developed
         its product range independently and that each company was active in distinct geographic markets. The Commission dealt with
         those issues for the first time in its defence. 
      
      91      Lastly, as regards the burden of proof, the applicant contends that, in order to rebut the presumption, it was not required
         to produce evidence showing that it had not exercised influence over its subsidiary. It is sufficient for the applicant to
         demonstrate that it would not be consistent with legal certainty to rely on the presumption, by producing evidence capable
         of ‘reveal[ing] that a perfectly reasonable conclusion would be’ that it had not exercised decisive influence.
      
      92      Furthermore, the Commission was not entitled to reject evidence to the contrary on the ground that it is not sufficient to
         establish that the applicant did not exercise ‘any’ control over its European subsidiary. Some types of control have nothing
         to do with the operation of the applicant’s business, for example, the obligation to provide accounts, or to adhere to certain
         norms of good governance.
      
      93      In that regard, the applicant maintains that it did provide sufficient evidence to rebut the presumption in question and it
         contends that the Commission did not apply the correct legal criterion with respect to the determination of the exercise of
         decisive influence. 
      
      94      The Commission contests the applicant’s arguments.
      
      –       Findings of the Court 
      95      As a preliminary point, the Court would recall the criteria used in the case‑law of the European Union in relation to the
         liability of a parent company for an infringement by its subsidiary.
      
      96      According to settled case‑law, the conduct of a subsidiary may be attributed to the parent company in particular where that
         subsidiary, despite having a separate legal personality, 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, regard being had in particular
         to the economic, organisational and legal links between those two legal entities (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 58 and the case-law cited)
      
      97      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 Article 81 EC (Akzo Nobel and Others v Commission, paragraph 96 above, paragraph 59).
      
      98      In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules
         of the European Union, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there
         is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary
         (see Akzo Nobel and Others v Commission, paragraph 96 above, paragraph 60 and the case-law cited).
      
      99      In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company
         in order to avail itself of the presumption that the parent exercises decisive influence over the commercial policy of the
         subsidiary. The Commission will then be able to regard the parent company as liable for the infringement in question, 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, to that effect, Akzo Nobel and Others v Commission, paragraph 96 above, paragraph 61 and the case‑law cited).
      
      100    In order to assess whether a subsidiary decides independently upon its own conduct on the market, account must be taken of
         all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company,
         which may vary from case to case and which cannot, therefore, be exhaustively listed (Akzo Nobel and Others v Commission, paragraph 96 above, paragraph 74; see, also, to that effect, Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 65).
      
      101    The Court observes that the applicant does not contest the Commission’s right to rely, in the present case, on the presumption
         arising from the fact that the subsidiary which took part in the infringement in question was wholly owned by the applicant.
         
      
      102    The applicant none the less puts forward certain arguments relating to the application of that presumption which should be
         examined first. 
      
      103    First, the applicant submits that the influence exercised by the parent company over its subsidiary’s conduct must be analysed
         by reference to the management of the commercial activity of the undertaking which is concerned by the infringement in question.
      
      104    It should be borne in mind that, according to the settled case‑law cited in paragraph 100 above, in order to assess whether
         a subsidiary decides independently upon its own conduct on the market, account must be taken of all the factors relied on
         in the light of the organisational, economic, and legal links between the companies concerned, whose importance varies from
         case to case. 
      
      105    It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, the presumption in question cannot be rebutted merely by showing
         that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see,
         to that effect, Case T‑112/05 Akzo Nobel and Others v Commission, paragraph 100 above, paragraphs 63 and 64, upheld by Case C-97/08 P Akzo Nobel and Others v Commission, paragraph 96 above, paragraphs 65 and 75).
      
      106    It follows that the independence of the subsidiary, for the purposes of the abovementioned case‑law, cannot be established
         merely by showing that it manages the specific aspects of its policy relating to the marketing of the products concerned by
         the infringement.
      
      107    Second, the applicant submits that, in order to rebut the presumption in question, it was sufficient that it produce evidence
         of such a kind as to ‘cast doubt’ on the conclusion arising from that presumption and reveal that a ‘perfectly reasonable
         conclusion’ was that it had not exercised decisive influence over its subsidiary. 
      
      108    However, it follows from the settled‑case law cited in paragraph 99 above that the presumption in question can be rebutted
         only by evidence sufficient to show that the subsidiary was independent. Accordingly, contrary to what the applicant’s argument
         suggests, mere prima facie evidence cannot suffice to rebut that presumption.
      
      109    Thus, where the parent company adduces a body of evidence to establish that its subsidiary was independent (Case T‑314/01
         Avebe v Commission [2006] ECR II‑3085, paragraph 136, and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 56), by demonstrating that the subsidiary does not, in essence, comply with the instructions
         which it issues and, as a consequence, acts independently on the market (Case T-112/05 Akzo Nobel and Others v Commission, paragraph 100 above, paragraph 62), the Commission will not be able to impute to it the conduct of the subsidiary unless
         the Commission rebuts that evidence. 
      
      110    The arguments raised in this plea will be examined by the Court in the light of those considerations.
      
      111    In the first place, the applicant contests the relevance of the circumstances referred to in recital 391 of the contested
         decision, which relate to the links in terms of personnel between the companies concerned.
      
      112    The Court would point out, in this respect, that, in support of the finding of the applicant’s liability, the Commission did
         not rely merely on the presumption arising from the applicant’s 100% ownership, through FMC Chemical Holding, of FMC Foret
         but also on other circumstances.
      
      113    The Commission observed inter alia, in recital 391 of the contested decision, that, at the material time, three persons carried
         out their functions within several companies concerned. Mr A.B., who participated directly in certain illicit contacts, was,
         at the material time, both vice-president of the applicant and chairman and managing director of FMC Foret. Mr W.B. was, during
         part of the period of the infringement, a member of the boards of FMC Foret and FMC Chemical Holding as well as executive
         vice-present of the applicant. Mr G.W. was a member of the boards of FMC Foret and FMC Chemical Holding during a part of the
         period of the infringement.
      
      114    The Court observes that the applicant is not justified in claiming that, in relying on those additional circumstances, the
         Commission admitted that the presumption in question had been rebutted.
      
      115    It is apparent from recitals 391, 394 and 395 of the contested decision that the Commission maintained its conclusion, set
         out in the statement of objections, that the finding of the applicant’s liability was based on the presumption arising from
         the fact that FMC Foret was wholly owned, although indirectly, by the applicant.
      
      116    That conclusion is in no way contradicted by the fact that the Commission set out other circumstances relating to the exercise
         of the applicant’s influence over its subsidiary, namely, in the present case, the links in terms of personnel between the
         companies concerned and the role of Mr A.B. in the collusive contacts (see, to that effect, Case C-97/08 P Akzo Nobel and Others v Commission, paragraph 96 above, paragraph 62).
      
      117    Next, as regards the relevance of the circumstances described in recital 391 of the contested decision, the Court observes
         that an overlap between individuals on the boards of the companies concerned constitutes relevant evidence of the lack of
         independence of the subsidiary (see, to that effect, judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraphs 550 to 558).
      
      118    The same is true of the direct participation of one of the individuals concerned in the illicit contacts. Indeed, the participation
         of a member of staff of the parent company in collusive meetings may amount to evidence that the parent company knew of its
         subsidiary’s participation in the infringement and, therefore, that it was actively implicated in the anti‑competitive conduct
         (Case T‑309/94 KNP BT v Commission [1998] ECR II‑1007, paragraphs 47 and 48); that evidence can therefore be used, a fortiori, as support for the contention that it exercised decisive influence over the subsidiary (see, to that effect, Lafarge v Commission, paragraph 117 above, paragraph 546).
      
      119    In this respect, the applicant does not contest the accuracy of the facts set out in recital 391 of the contested decision,
         but submits (i) that the persons in question, in particular Mr A.B., had purely administrative functions and were not associated
         with the day‑to‑day operations of the undertaking and (ii) that the position held by Messrs W.B. and G.W. within the holding
         company, through which the applicant owned FMC Foret, was not relevant, since the only purpose of that holding company was
         to hold shares. 
      
      120    However, those arguments are not capable of casting doubt on the relevance of the evidence in question with respect to the
         assessment of the subsidiary’s independence.
      
      121    First, the applicant’s argument based on the purely administrative functions of the persons concerned is founded on the incorrect
         premiss that the influence of the parent company must be examined by reference to the ‘day-to-day operations’ of the subsidiary
         and that simply ‘over[seeing] the business strategy’ of that subsidiary is not relevant in this respect.
      
      122    Given that the influence in question is to be assessed by reference to the commercial policy of the undertaking in the broad
         sense, and not by reference merely to the specific aspects of its day-to-day operations (see paragraphs 104 and 105 above),
         the overlap between the members of staff in question is a relevant factor, even if their role was limited to that of coordinating
         and controlling the business strategy of the undertaking.
      
      123    Second, as regards the fact that Messrs W.B. and G.W. also carried out functions within FMC Chemical Holding, the Court observes
         that, although that circumstance cannot be regarded as a strong indication of the exercise of influence, it is not irrelevant,
         since it was the holding company through which the applicant owned FMC Foret. It is moreover undisputed that Mr W.B. carried
         out functions within each of the three companies concerned.
      
      124    Accordingly, the applicant is not justified in claiming that the Commission ought not to have used, for the purposes of corroborating
         the presumption in question, the additional indicia referred to in recital 391 of the contested decision. The Commission was
         therefore also right, in recitals 392 to 394 of the contested decision, to dismiss the similar arguments of the applicant
         relied on during the administrative procedure, alleging that the evidence in question was not relevant.
      
      125    In the second place, the applicant states that, in its reply to the statement of objections, it presented a body of evidence
         that was sufficient to show that its subsidiary was independent and submits that the Commission committed an error of law
         and of assessment in concluding to the contrary. 
      
      126    It is apparent from the documents before the Court that, in its reply to the statement of objections, the applicant claimed
         in essence that its shareholding in the subsidiary, acquired progressively between 1966 and 1992, was a mere financial investment
         and had no effect on the subsidiary’s independence. The applicant submitted inter alia that it did not exercise any influence
         over FMC Foret, the affairs of FMC Foret having been run by its own management team in an independent manner. 
      
      127    According to the applicant, that view was demonstrated by the following material annexed both to its reply to the statement
         of objections and to the application: (i) the corporate directories of the companies concerned during the period of the infringement,
         demonstrating, in the applicant’s submission, that there was no overlap between those companies in terms of personnel, (ii)
         the statements by four employees of the companies concerned, namely Messrs T.B., A.B., G.W. and S.S., demonstrating, in the
         applicant’s submission, the absence of any coordination between the two companies, in particular as regards the marketing
         of the products in question, (iii) internal literature (corporate brochure) of FMC Foret, from which it is allegedly apparent
         that FMC Foret had historically developed its products before it was taken over by the applicant and then carried out its
         operations independently and (iv) extracts from the subsidiary’s board minutes, demonstrating, in the applicant’s submission,
         that its meetings were held in Spanish and that operational management was never discussed. The documents before the Court
         moreover show that the applicant also submitted to the Commission its 1995 annual report, an item on which it does not rely
         before the Court. 
      
      128    It is therefore appropriate to examine, in the light of the criteria set out in paragraphs 96 to 109 above, the applicant’s
         arguments relying on the material in question.
      
      129    First, the Court would point out that the applicant’s view that its subsidiary, owned through an intermediate holding company,
         was treated as a simple investment is a mere assertion and does not therefore constitute in itself adequate proof of independence.
      
      130    The fact that the parent company’s corporate objects enable the conclusion that it constituted a holding company whose role
         under its statutes was to manage its shareholdings in the capital of other companies is not sufficient, in itself, to rebut
         the presumption in question (see, to that effect, Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 109 above, paragraph 70). In the present case, it is all the more insufficient given that the applicant does not
         claim that its company was a holding company, but that its subsidiary was owned through a holding company, and does not put
         forward any evidence demonstrating the role of that holding company. 
      
      131    Second, as regards the applicant’s contention, supported by the statements of Messrs T.B., A.B., G.W. and S.S., alleging that,
         within the group, there were ‘two entirely separate organisational structures for producing and selling HP’, the Court would
         point out that the fact that a parent company is not active on the same market as its subsidiary does not demonstrate that
         the subsidiary is independent.
      
      132    The decisive influence in question is to be assessed by reference to all the economic, organisational and legal links between
         the parent company and its subsidiary, and the claim that the subsidiary was responsible for the day‑to‑day management of
         the activity relating to the infringement, even if it were established, is not sufficient evidence of its independence (see
         paragraph 105 above). In particular, since the division of tasks is a normal phenomenon in a group, such as the group in question
         in the present case, no conclusion can be drawn from the fact that the parent company and its subsidiary operate on separate
         markets and have no links in terms of customer-supplier relationships.
      
      133    Those considerations apply, a fortiori, to the circumstances of the present case, given that the applicant marketed, admittedly on a separate geographic market,
         one of the products in question, HP, which indicates, at the very least, that it was in a position to influence the commercial
         policy of its subsidiary in the same area.
      
      134    The Court must therefore reject the applicant’s arguments seeking to establish that FMC Foret organised its HP sales and production
         business independently of the similar business carried out by the applicant in the United States, a separate market in view
         of transport constraints, that the companies in question had separate product ranges, and that there was no overlap in terms
         of their customers. 
      
      135    Since those circumstances, even if they were established, are not capable of showing that the subsidiary was independent,
         the Commission was therefore also right, in recital 394 of the contested decision, to reject the arguments based on the evidence
         in question as not constituting adequate proof that FMC Foret was independent. 
      
      136    The applicant is also wrong to submit that the Commission distorted its argument (i) by presenting it as a claim that there
         was a ‘separate department for the manufacturing of HP to be shipped to the American market’ and (ii) by stating that the
         applicant was ‘equally involved in producing … PBS’ (recital 394 of the contested decision).
      
      137    Although the Commission did not present the applicant’s argument that there were two separate organisational structures in
         the exact terms in which it was couched, that manner in which it was presented was not able to affect the Commission’s assessment
         since, in any event, it is not a factor which is capable of establishing that FMC Foret was independent.
      
      138    Moreover, with respect to the Commission’s statement that the applicant marketed PBS, the Court observes that the Commission
         concedes that that was an error but makes it clear that that error stems from a statement by Mr T.B., provided by the applicant,
         something which the applicant does not contest. 
      
      139    The Court observes that, in view of the wording of the statement in question, set out in paragraph 77 above, the applicant
         cannot claim that it is an obvious ‘typographical error’.
      
      140    Thus, the Commission cannot be criticised for having referred to a statement which, although incorrect, came from information
         supplied by the applicant in the context of evidence to the contrary which the applicant was required to adduce. In any event,
         since no conclusion can be drawn from the fact that the two companies operated on different markets, the legality of the contested
         decision cannot be affected by the Commission’s reference to that erroneous statement.
      
      141    Third, the applicant’s argument that there was no overlap in personnel between the companies in question, which is based on
         the names appearing in the companies’ directories and on Mr T.B.’s statement that those companies had maintained ‘their own
         dedicated, separate business managers, controllers, human resource managers, sales and market managers, production managers,
         technology managers and operational work force’ is not significant evidence of the subsidiary’s independence. 
      
      142    The argument in question is invalidated by the links, outlined in recital 391 of the contested decision, between the companies
         concerned resulting from the overlap between some of their board members. 
      
      143    Moreover, the alleged absence of overlap between the personnel involved in the operational management of the undertaking on
         which the applicant relies is not capable of demonstrating that its subsidiary was independent, since the assessment of independence
         does not relate solely to the commercial policy stricto sensu of the undertaking (see paragraph 105 above).
      
      144    Fourth, the applicant relies on the absence of any information and reporting system between itself and FMC Foret, with the
         exception of the financial reports and of other information comparable to that given to a mere investor, and refers to (i)
         the statements to that effect by Messrs A.B. and G.W. and (ii) the fact that, unlike in the case of the applicant’s other
         subsidiaries, FMC Foret’s board minutes were only drawn up in Spanish, and their content confirms moreover that the ‘operational’
         issues of the undertaking were not discussed. 
      
      145    The Court observes in this respect that, given that the independence of the subsidiary is not to be assessed solely by reference
         to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of
         its parent company a specific information policy on the market concerned is not sufficient to show that it was independent.
         
      
      146    Moreover, the applicant’s argument seeking to show that there was no specific information policy is irrelevant in the light
         of the fact, stated in recital 391 of the contested decision, that Mr A.B., chairman and managing director of FMC Foret, was
         also vice‑president of the applicant and was therefore in a position to inform the latter about the commercial policy of the
         subsidiary.
      
      147    It follows from all those considerations that the Commission was right to find that the evidence put forward by the applicant,
         considered as a whole, did not contain adequate proof that FMC Foret was independent and that the body of evidence at the
         Commission’s disposal, in particular the items of evidence described in recital 391 of the contested decision, attested to
         the contrary (recital 394 of the contested decision).
      
      148    Nor is that finding invalidated by the applicant’s arguments directed more generally against the Commission’s assessments
         of the arguments and evidence in question. 
      
      149    In this respect, first, given that the independence of a subsidiary is to be assessed in the light of all the relevant factors
         relating to the economic, organisational and legal links between the companies concerned, the Commission was justified in
         referring in that assessment to the additional indicia described in recital 391 of the contested decision.
      
      150    In particular, contrary to the applicant’s submission, the Commission was not required to rebut in detail the applicant’s
         arguments alleging that there was no overlap of personnel and no information and reporting system, since the Commission correctly
         found, in recital 394 of the contested decision, that those arguments were invalidated by the indicia referred to in recital
         391 of that decision relating to the links in terms of personnel between the companies concerned and the role of Mr A.B. in
         the collusive contacts.
      
      151    Second, the applicant is not justified in claiming that the Commission erred in the assessment of the employees’ statements
         submitted by the applicant during the administrative procedure. 
      
      152    Contrary to the applicant’s claim, recital 394 of the contested decision does not contain any admission that the statements
         in question constituted adequate proof that FMC Foret was independent. In that recital, the Commission stated that ‘[t]he
         “independent status” of FMC Foret is otherwise only demonstrated through statements by … employees’. It is apparent both from
         the context of that sentence, which falls within the assessment of the applicant’s arguments, and the use of quotation marks
         that the Commission was merely referring to the argument in the words used by the applicant, but did not find that the applicant
         had, in fact, established the ‘independent status’ of FMC Foret.
      
      153    Next, the applicant is also wrong to allege that the Commission rejected the statements in question on the sole ground that
         they came from employees of the companies concerned and that it did not ascribe to that evidence probative value comparable
         to that of the statements by the employees of the undertakings which made leniency applications.
      
      154    It is apparent from recital 394 of the contested decision, read as a whole, that the Commission rightly found that the statements
         in question contained evidence, but concluded, following assessment of all the relevant information, that that evidence was
         not sufficient to demonstrate that FMC Foret was independent.
      
      155    Accordingly, the applicant cannot reasonably claim that the Commission refused to ascribe probative value to the statements
         in question.
      
      156    Moreover, by the same argument, the applicant maintains – wrongly – that the statements in question have particularly great
         probative value, comparable to that ascribed to certain statements made by the undertakings which made leniency applications.
         
      
      157    The ascribing, on a case‑by‑case basis, of significant probative value to statements made in the context of a leniency application
         is explained by the consideration that they are an admission of infringement and therefore, as a rule, statements which run
         counter to the interests of the declarant (see, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 211). The employees’ statements submitted by the applicant in the present case were made exclusively
         in the applicant’s interest and the context of those statements is therefore not the same as that of a leniency application.
         
      
      158    Third, the applicant submits that the Commission failed to take into account certain material, namely the corporate directories,
         the internal literature (corporate brochure) of FMC Foret and the FMC Foret board minutes. 
      
      159    The Court would point out that it is apparent from recitals 392 to 394 of the contested decision that the Commission assessed
         the applicant’s arguments that its subsidiary was independent in the light of all the evidence submitted to it. 
      
      160    In that regard, given that the assessment in recitals 392 to 394 of the contested decision responds, to the requisite legal
         standard, to the applicant’s arguments as a whole, the mere fact that the Commission did not refer to certain material submitted
         by the applicant cannot invalidate that assessment.
      
      161    Fourth, the applicant criticises the use of the material referred to by the Commission in recital 394 of the contested decision,
         in the words preceding footnote 379, according to which, in its annual report of 2004 and its press release of 6 February
         2006, the applicant ‘itself present[ed] FMC Foret as an integrated part of its business’, and from which it followed, according
         to the Commission, that ‘FMC Foret operate[d] as its European subsidiary in this regard’.
      
      162    The Court observes that, when questioned on this point at the hearing, the Commission admitted that the applicant had not
         been afforded an opportunity during the administrative procedure to submit its observations on the material set out in footnote
         379 of the contested decision.
      
      163    That material must therefore be disallowed as evidence.
      
      164    None the less, with respect to the infringement of the rights of the defence, the undertaking concerned must still show that
         the result at which the Commission arrived in its decision would have been different if that undisclosed material had to be
         disallowed as evidence (see, to that effect, 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 73).
      
      165    In this respect, the applicant submits that the defects vitiating the assessments in question necessarily affected the content
         of the contested decision, in view of the weakness of the other evidence relied on by the Commission in support of its finding
         of the applicant’s joint and several liability. 
      
      166    However, the Court would point out that since this material was relied on by the Commission only by way of confirmation, as
         is apparent from the last sentence of recital 394 of the contested decision, the fact that it must be disallowed as evidence
         cannot affect the legality of the finding of the applicant’s liability, which is demonstrated to the requisite legal standard
         by other considerations set out in the contested decision.
      
      167    The factor taken into account by the Commission, namely the presumption of the exercise of the applicant’s decisive influence
         over its wholly‑owned subsidiary, was sufficient to justify the finding of the applicant’s liability, since that presumption
         was not rebutted by the applicant and was indeed reinforced by the factual elements described in recital 391 of the contested
         decision. 
      
      168    Lastly, since it is apparent from recitals 391 to 394 as a whole that the Commission rightly relied on the exercise of decisive
         influence by the applicant over its subsidiary, the applicant cannot reasonably claim that the Commission relied on an incorrect
         criterion merely because, in the fourth sentence of recital 394 of that decision, reference is made to the fact that a specific
         argument of the applicant’s did not suffice to establish that it did not exercise ‘any control’ over its subsidiary. 
      
      169    In the light of all those considerations, it must be concluded that the Commission was right to find that the evidence submitted
         by the applicant, considered as a whole, was not capable of establishing that FMC Foret was independent and, therefore, of
         rebutting the finding, arising from the presumption, that it exercised its decisive influence over the conduct of its subsidiary.
      
      170    In addition, that finding is supported by the additional indicia, based on the links in terms of personnel between the companies
         concerned and the role of Mr A.B. in the infringement (recital 391 of the contested decision), which were also not called
         in question by the applicant.
      
      171    Furthermore, the applicant has failed to establish that the Commission erred in the assessment of the probative value or the
         content of the evidence adduced to rebut the presumption, or that the Commission failed to assess the evidence as a whole
         (see paragraphs 153 to 155 and 158 to 160 above).
      
      172    Nor has the applicant demonstrated that the alleged infringement of the rights of the defence stemming from the use of undisclosed
         material was capable of having any effect on the conclusions reached in the contested decision (see paragraphs 166 and 167
         above).
      
      173    In view of the foregoing, the Court holds that this plea is not well founded and therefore rejects the claim that the contested
         decision should be annulled.
      
       The claim that the fine should be reduced
       Arguments of the parties
      174    The applicant disputes the determination of the amount of its fine, and claims that, when assessing the nature of the infringement
         and therefore its gravity, the Commission reduced the addressees of the contested decision to a single category, stating that
         they had colluded to set up a secret and institutional system designed to restrict competition, and did so with full knowledge
         of the illegality of their actions (recital 454 of the contested decision). 
      
      175    There is no evidence to support the finding that FMC Foret colluded with the others to set up an institutionally collusive
         system. The evidence set out in the contested decision does not demonstrate that FMC Foret was involved in setting up a collusive
         scheme, but shows, at the most, that it was drawn into an institutionally collusive framework by the larger undertakings,
         and to a great extent against its own interests. Its role was essentially passive and its participation in the meetings was
         sporadic in nature. 
      
      176    The applicant maintains that, according to the Commission itself, FMC Foret simply joined the cartel some three years after
         it started. The other parties to the cartel were already involved previously in an identical cartel on the same market. 
      
      177    As a new entrant, FMC Foret had nothing to gain from the cartel but everything to gain from competing. The Commission itself
         acknowledged that there was a difference between the other parties to the cartel and FMC Foret, and stated that its participation
         ‘[had] often differed in manner from that of other undertakings’ (recital 323 of the contested decision).
      
      178    FMC Foret’s passive role is also demonstrated by its much more sporadic participation in the collusive meetings, as its representatives
         participated physically in 14 of the 30 meetings held between May 1997 and December 1999, out of the 73 meetings that allegedly
         took place while the cartel was in existence. In the context of some other meetings, FMC Foret was alleged to have been connected
         or kept informed by telephone, and could not therefore have influenced the discussions. 
      
      179    The applicant disputes the Commission’s argument that, in so far as the duration of FMC Foret’s participation in the infringement
         was taken into account in recital 467 of the contested decision, there was no need to take it into account again when assessing
         the gravity of the infringement. The fact that an undertaking entered the market at a late stage can demonstrate that it played
         a less active role in the infringement, and the same principle ought to apply to situations in which an undertaking enters
         a cartel long after it has been set up. The duration of an undertaking’s participation in the infringement is a question distinct
         from that of its active or passive role (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraphs 171 to 174). 
      
      180    The Commission contests the applicant’s arguments.
      
       Findings of the Court
      181    In support of its application for a reduction in its fine, the applicant relies on the circumstances of its subsidiary’s participation
         in the infringement, claiming, first, that the gravity of its subsidiary’s participation in the infringement was less pronounced
         than that of other undertakings and, second, that the Commission ought to have granted it the benefit of an attenuating circumstance
         on the basis of its passive role in the infringement.
      
      182    As regards the Commission’s alleged failure to take account of the circumstances in question when assessing the gravity of
         the infringement and determining the starting amount of the fine, it should be recalled that that assessment is to be carried
         out by reference to the entire infringement in which all the undertakings participated.
      
      183    Accordingly, the applicant’s arguments based on the circumstances of FMC Foret’s participation in the infringement in question
         can be examined only in the context of the complaints relating to the assessment of the attenuating circumstances (see, to
         that effect, Case T‑73/04 Carbone‑Lorraine v Commission [2008] ECR II‑2661, paragraphs 102 and 104).
      
      184    As regards, next, the complaint alleging refusal to grant FMC Foret the benefit of the attenuating circumstance associated
         with its alleged passive role in the infringement, it should be pointed out that the Court held, in its judgment of even date
         in Case T‑191/06 FMC Foret v Commission [2011] ECR II‑0000, paragraphs 334 to 341), that a body of evidence comparable to that relied on by the applicant in the present
         case did not demonstrate that FMC Foret had an exclusively passive or follow‑my‑leader role in the cartel, as regards in particular
         the alleged sporadic nature of its participation in the collusive meetings, the specific manner in which that participation
         manifested itself, and the evidence relating to its alleged competitive strategy on the market. 
      
      185    In particular, it should be recalled that FMC Foret was represented or kept informed, as regards the majority of the collusive
         meetings referred to in the contested decision, during the period from 29 May 1997 until 13 December 1999. The applicant cannot
         therefore reasonably claim, in this respect, that the participation of FMC Foret was significantly more sporadic than that
         of the other parties to the cartel. In so far as the applicant relies on the specific manner in which FMC Foret participated
         in certain collusive meetings, namely that it did not physically participate in them but was informed of them by telephone,
         the Court observes that that manner of participation is consistent with the clandestine nature of the cartel and does not
         demonstrate an exclusively passive or follow‑my‑leader role.
      
      186    Furthermore, as regards the applicant’s argument based on the duration of FMC Foret’s participation in the cartel, the Court
         would point out that that factor was taken into account in the context of the determination of the amount of the fine (recital
         467 of the contested decision).
      
      187    In addition, the applicant cannot reasonably rely on the approach adopted in Cheil Jedang v Commission, paragraph 179 above (paragraph 171), in which the Court took account, in the assessment of the passive role, of the fact
         that the undertaking concerned entered the market at a late stage. In contrast to the circumstances of the case in that judgment,
         in the present case FMC Foret was present on the markets concerned right from the beginning of the cartel and the fact that
         its participation in it was established only from 29 May 1997 does not demonstrate, in the light in particular of the other
         circumstances of the case, its passive role.
      
      188    In the light of the foregoing, the complaint based on an alleged attenuating circumstance associated with the exclusively
         passive or follow‑my‑leader role of FMC Foret in the cartel cannot be upheld.
      
      189    Consequently, the Court rejects the claim that the fine should be reduced and therefore dismisses this action in its entirety.
         
      
       Costs
      190    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. Since the applicant has been unsuccessful, it must be ordered to pay the
         costs, in accordance with the form of order sought by the Commission.
      
      On those grounds,
      THE GENERAL COURT (Sixth Chamber, Extended Composition)
      hereby:
      1.      Dismisses the action;
      2.      Orders FMC Corp. to pay the costs. 
      
               Vadapalas
            
            
                Dittrich 
            
            
                Truchot
            
         Delivered in open court in Luxembourg on 16 June 2011.
      [Signatures]
      * Language of the case: English.