Elf Aquitaine SA v European Commission.
Date: 2011-09-29
35. Under Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. Accordingly, the appellate jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas argued before the General Court. A party cannot therefore change the subject-matter of the proceedings by putting forward for the first time before the Court of Justice a plea in law which it could have raised before the General Court but did not, since that would amount to allowing it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, in particular, Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 59; Case C‑266/97 P VBA  v VGB and Others  [2000] ECR I‑2135, paragraph 79; and Case C‑280/08 P Deutsche Telekom  v Commission , [2010] ECR I‑9555, paragraph 34). Such a plea must consequently be considered inadmissible in an appeal.
36. In the present case, by its first ground of appeal, Elf Aquitaine claims, not that the General Court denied the ‘criminal’ nature – within the meaning of the case-law based on Article 6 of the ECHR – of fines imposed under Article 81 EC, but essentially that it breached the fundamental rights accruing to Elf Aquitaine as a legal person held liable for an infringement attracting penalties which, in its view, are of a criminal nature. To the extent that, seen in that light, the present ground of appeal does not change the subject-matter of the proceedings before the General Court, it cannot be rejected as inadmissible (see, by analogy, Case C‑229/05 PKK and KNK v Council  [2007] ECR I‑439, paragraphs 66 and 67).
53. In that regard, it should be borne in mind that, according to settled case-law, the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. On that point, the Court has stated that in this context the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that if such an economic entity infringes the competition rules, it is for that entity, consistently with the principle of personal liability, to answer for that infringement (see Case C‑90/09 P General Química and Others  v Commission [2011] ECR I‑1, paragraphs 34 and 35 and the case-law cited, and Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg  v Commission  and Commission  v ArcelorMittal Luxembourg and Others , [2011] ECR I‑2239, paragraph 95).
54. It is clear from settled case-law that the conduct of a subsidiary may be imputed 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, 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 Akzo Nobel and Others v Commission , paragraph 58, and General Química and Others  v Commission , paragraph 37).
55. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may 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 59, and General Química and Others  v Commission , paragraph 38).
56. In that regard, the Court has stated that, 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: (i) the parent company is able to exercise a decisive influence over the conduct of the subsidiary and (ii) there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence (‘the presumption of actual exercise of decisive influence’) (see, inter alia, Case 107/82 AEG-Telefunken  v Commission  [1983] ECR 3151, paragraph 50; Akzo Nobel and Others  v Commission , paragraph 60; General Química and Others  v Commission , paragraph 39; and ArcelorMittal Luxembourg  v Commission  and Commission  v ArcelorMittal Luxembourg and Others , paragraph 97).
57. 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 actually exercises decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for 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 Case 286/98 P Stora Kopparbergs Bergslags  v Commission  [2000] ECR I‑9925, paragraph 29; Akzo Nobel and Others  v Commission , paragraph 61; General Química and Others  v Commission , paragraph 40; and ArcelorMittal Luxembourg  v Commission  and Commission  v ArcelorMittal Luxembourg and Others , paragraph 98).
58. It also emerges from the case-law that, in order to ascertain whether a subsidiary determines its conduct on the market independently, account must 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 (see, to that effect, Akzo Nobel and Others  v Commission , paragraphs 73 and 74).
59. The purpose of the presumption of actual exercise of decisive influence is, in particular, to strike a balance between, on the one hand, the importance of the objective of combatting conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that, as is clear from the consistent case-law cited in paragraph 56 above, the presumption is rebuttable.
60. It should be borne in mind, moreover, that that presumption is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, by dint of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and, furthermore, that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found.
62. It follows from the case-law, moreover, that a presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded (see, to that effect, Case C‑45/08 Spector Photo Group and Van Raemdonck [2009] ECR I‑12073, paragraphs 43 and 44, and EUR. Court H.R., the Janosevic v. Sweden judgment of 23 July 2002, Reports of Judgments and Decisions 2002-VII , § 101 et seq.).
63. In the present case, it is apparent from paragraphs 46 and 47 above that Elf Aquitaine does not challenge as such the lawfulness of the presumption of actual exercise of decisive influence as set out in paragraphs 56 and 57 above. Nor does it challenge the applicability, in the circumstances of the present case, of such a presumption where a parent company owns 98% of the capital of its subsidiary.
65. Contrary to Elf Aquitaine’s contention, however, the approach taken by the General Court in the judgment under appeal towards the evidence adduced by Elf Aquitaine does not, taken as a whole, constitute the imposition of a probatio diabolica . As stated in paragraph 58 above, it is for entities wishing to rebut the presumption that they have actually exercised decisive influence to adduce all factors relating to the economic, organisational and legal links which tie the subsidiary in question to the parent company that they consider to be capable of demonstrating that those two companies did not constitute a single economic entity.
66. In that regard, the mere fact that an entity does not, in a given case, produce evidence capable of rebutting the presumption of actual exercise of decisive influence does not mean that that presumption cannot be rebutted in any circumstances.
67. That being so, to the extent that the criticisms set out in the third indent of paragraph 44 above and also in paragraphs 45 to 47 are, in substance, that the General Court’s assessment of the arguments put forward by Elf Aquitaine demonstrates, solely by virtue of its conclusion – a negative one from Elf Aquitaine’s perspective – that a probatio diabolica was required, they must be rejected.
68. To the extent that, on the other hand, the true purpose underlying those criticisms could be to have this Court undertake a fresh appraisal of the facts found by the General Court, they must be held to be inadmissible in an appeal. It is settled law that the General Court has exclusive jurisdiction, first, to find the facts, save where the substantive inaccuracy in its findings is apparent from the documents submitted to it, and, second, to assess those facts. That appraisal does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is amenable, as such, to review by the Court of Justice (see, inter alia, Case C‑425/07 P AEPI  v Commission  [2009] ECR I‑3205, paragraph 44 and the case-law cited).
70. As regards, moreover, the criticism set out in the first indent of paragraph 44 above, that the size of the shareholding in the subsidiary is in itself sufficient to trigger the presumption of actual exercise of decisive influence, it should be observed that the fact that it is difficult to adduce the evidence necessary to rebut a presumption does not in itself mean that that presumption is in fact irrebuttable, especially where the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity.
80. As regards the argument set out in paragraph 75 above, moreover, it follows from paragraphs 56 and 57 above that the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and operation of that presumption (see also, to that effect, Akzo Nobel and Others  v Commission , paragraph 62). Accordingly, the General Court did not err in not requiring, independently of the evidence relating to the operation of the presumption at issue, additional solid indicia of the subsidiary’s lack of autonomy on the market.
88. In that regard, it should be borne in mind – as the General Court indicated in substance in paragraphs 97, 152, 167 and 186 of the judgment under appeal and as follows, moreover, from paragraphs 53 to 55 above – that, where a parent company and its subsidiary form part of a single ‘undertaking’ for the purposes of Article 101 TFEU, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necessarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori , is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU.
96. Yet it follows from paragraphs 56, 57 and 80 above that the implementation of the presumption of actual exercise of decisive influence is not conditional upon the production of additional indicia relating to the actual exercise of influence by the parent company (see also, to that effect, Akzo Nobel and Others  v Commission , paragraph 62).
112. According to consistent case-law, and as confirmed in Article 6(3) TEU, fundamental rights are an integral part of the general principles of law whose observance the Court ensures. The Court has thus repeatedly held that respect for the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law (see, inter alia, Case C‑534/07 P Prym and Prym Consumer  v Commission [2009] ECR I‑7415, paragraph 26 and the case-law cited).
113. As regards a proceeding pursuant to Article 81 EC, it follows from the case-law that the administrative procedure before the Commission is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, covering the period up to notification of the statement of objections, is intended to enable the Commission to gather all the relevant evidence confirming that there has or has not been an infringement of the competition rules and to adopt an initial position on the course which the procedure is to follow. The inter partes stage, which covers the period from notification of the statement of objections to adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, inter alia, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission  [2002] ECR I‑8375, paragraphs 181 to 183, and Prym and Prym Consumer  v Commission , paragraph 27).
114. As regards the preliminary investigation stage, the Court has stated that the starting point of that stage is the date on which the Commission, in exercise of the powers conferred on it by the EU legislature, takes measures that suggest that an infringement has been committed and that have a significant impact on the situation of the undertakings suspected (see Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 182, and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission [2006] ECR I‑8725, paragraph 38).
115. It is not until the beginning of the administrative inter partes stage that the entity concerned is informed, via the statement of objections, of all the essential elements on which the Commission is relying at that stage of the procedure. Consequently, it is only after the statement of objections has been issued that the undertaking concerned can rely in full on its rights of defence (see, to that effect, Limburgse Vinyl Maatschappij and Others  v Commission , paragraphs 315 and 316; Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , paragraph 47; and Case C‑407/04 P Dalmine  v Commission  [2007] ECR I‑829, paragraph 59).
117. It is therefore important to ensure that the rights of the defence are not irremediably impaired during that stage of the administrative procedure since the measures of inquiry adopted may be decisive in assembling evidence of the unlawful nature of conduct engaged in by undertakings, for which they may be liable (see, to that effect, Joined Cases 46/87 and 227/88 Hoechst  v Commission  [1989] ECR 2859, paragraph 15, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/99 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 63).
118. Accordingly, as regards compliance with the ‘reasonable time’ requirement, the Court has held, in substance, that the appraisal of the source of any interference with the effective exercise of the rights of the defence must not be confined to the inter partes stage of the administrative procedure, but must extend to the entire procedure and be carried out by reference to its total duration (see, to that effect, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , paragraphs 49 and 50, and Case C‑113/04 P Technische Unie  v Commission  [2006] ECR I‑8831, paragraphs 54 and 55).
120. That does not mean, however, that, before the first measure is taken against a given entity, the Commission is under a duty, as a matter of routine, to warn that entity even of the mere possibility of measures of investigation or of proceedings based on EU competition law, especially if, by such a warning, the effectiveness of the Commission’s investigation might be unduly compromised (see, to that effect, Dalmine  v Commission , paragraph 60).
121. In addition, the Court has held that the principle of personal liability does not prevent the Commission from considering first of all the possibility of penalising the company which infringed the competition rules before considering the possibility that the infringement might be imputed to the parent company (see 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, paragraph 82).
130. That general, abstract and vague argument cannot ultimately be capable of establishing in the present case the reality of a breach of the rights of the defence, which must be examined by reference to the specific circumstances of each case (see, by analogy, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , paragraphs 52 to 61).
144. According to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑407/08 P Knauf Gips  v Commission [2010] ECR I‑6375, paragraph 43 and the case-law cited).
146. As to the merits, it should be borne in mind at the outset that the obligation laid down in Article 253 EC to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 67, and Case C‑17/99 France  v Commission  [2001] ECR I‑2481, paragraph 35).
147. In that vein, the statement of reasons required under 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 that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (see France  v Commission , paragraph 35, and Deutsche Telekom v Commission , paragraph 130).
148. Thus, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see, inter alia, to that effect, Case C‑199/99 P Corus UK  v Commission  [2003] ECR I‑11177, paragraph 145, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Røhrindistri and Others  v Commission  [2005] ECR I‑5425, paragraph 462).
149. Accordingly, the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the Courts of the European Union (see Case 195/80 Michel  v Parliament  [1981] ECR 2861, paragraph 22; Case C‑351/98 Spain  v Commission  [2002] ECR I‑8031, paragraph 84; Joined Cases C‑199/01 P and C‑200/01 P IPK-München and Commission  [2004] ECR I‑4627, paragraph 66; and Dansk Røhrindistri and Others  v Commission , paragraph 463).
150. It is settled case-law that the requirement to state reasons must be assessed by reference to the circumstances of the 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 (see, inter alia, Commission  v Sytraval and Brink’s France , paragraph 63; Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑4951, paragraphs 166 and 178; and Deutsche Telekom  v Commission , paragraph 131).
152. Where, as in the present case, a decision taken in application of the EU competition law rules relates to several addressees and raises a problem with regard to the imputability of 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. Accordingly, in respect of a parent company held jointly and severally liable for the infringement committed by its subsidiary, such a decision must in principle contain a detailed statement of reasons for imputing the infringement to that company (see, by analogy, Case C‑196/99 P Aristrain  v Commission  [2003] ECR I‑11005, paragraphs 93 to 101).
153. As regards, more specifically, a Commission decision which relies exclusively, with respect to certain addressees, on the presumption that they actually exercised decisive influence, the Commission is in any event required – if it is not to render that presumption in reality irrebuttable – to explain adequately to those addressees the reasons why the elements of fact and of law put forward did not suffice to rebut that presumption. The Commission’s duty to state reasons for its findings on that point flows primarily from the fact that that presumption is open to rebuttal, for the purposes of which it is necessary for those concerned to produce evidence relating to the economic, organisational and legal links between the companies concerned.
154. That said, it should be borne in mind that the Commission is not required in such a context to adopt a position on factors which are manifestly irrelevant, unimportant or clearly ancillary (see, by analogy, Commission  v Sytraval and Brink’s France , paragraph 64; Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste  v UFEX and Others  [2008] ECR I‑4777, paragraph 89; and Bertelsmann and Sony Corporation of America  v Impala , paragraph 167).
155. It is also apparent from the case-law that, although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner (for example by a reference to those decisions), the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning (see, inter alia, Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others  v Commission [1975] ECR 1491, paragraph 31, and Case C‑295/07 P Commission  v Département du Loiret  [2008] ECR I‑9363, paragraph 44).
167. In those circumstances, as follows from paragraphs 146 to 155 above and, in particular, from paragraphs 148, 152, 153 and 155, it was for the General Court – in the light of all the circumstances of the case and, in particular, the change in approach (not disputed in the present proceedings) with respect to Elf Aquitaine between the Organic Peroxides decision and the decision at issue – to pay particular attention to the question whether the latter decision contains a detailed statement of the reasons why the Commission found that the evidence submitted by Elf Aquitaine was not sufficient to rebut the presumption applied in that decision.