Eni SpA v European Commission.
Date: 2013-05-08
47. It also follows from settled case-law that, in the particular case in which a parent company holds all or almost all of the capital in a subsidiary which has committed an infringement of the European Union competition rules, there is a rebuttable presumption that that parent company exercises an actual decisive influence over its subsidiary. In such a situation, it is sufficient for the Commission to prove that all or almost all of the capital in the subsidiary is held by the parent company in order to take the view that that presumption is fulfilled (see, inter alia, Case C‑289/11 P Legris Industries  v Commission  [2012] ECR I‑0000, paragraph 46 and the case-law cited).
48. In addition, in the specific case where a holding company holds 100% of the capital of an interposed company which, in turn, holds the entire capital of a subsidiary of its group which has committed an infringement of European Union competition law, there is also a rebuttable presumption that that holding company exercises a decisive influence over the conduct of the interposed company and also indirectly, via that company, over the conduct of that subsidiary ( General Química and Others  v Commission , paragraph 88).
49. In the present case, for the entire duration of the infringement in question, Eni held, directly or indirectly, at least 99.97% of the capital in the companies which were directly active within its group in the BR and ESBR sectors, namely EniChem Elastomeri, EniChem SpA and Versalis, which Eni does not dispute. In consequence, the presumption, referred to in paragraphs 47 and 48 of the present judgment and following from established case-law, is applicable to Eni.
50. As regards Eni’s argument that that presumption of the exercise of an actual decisive influence runs counter to the principles of lawfulness, that penalties should be applied only to the offender, of personal liability and of legal certainty, it is sufficient to recall that that presumption seeks precisely to find a balance between the importance, on the one hand, of the objective of penalising conduct contrary to the competition rules, in particular Article 101 TFEU, and to prevent its repetition and, on the other, the requirements of certain general principles of European Union law, such as, in particular, the principles of the presumption of innocence, that penalties should be applied only to the offender, legal certainty and the rights of the defence, including the principle of equality of arms. It is particularly for that reason that it is rebuttable (see, to that effect, inter alia, Case C‑521/09 P Elf Aquitaine  v Commission  [2011] ECR I-0000, paragraph 59). Since Eni’s argument is unfounded, the judgment under appeal is not vitiated by any error in that regard.
65. That conclusion cannot be called into question by the fact that Eni had never operated directly in the chemical sector or that there had never been any management overlap between the parent company and the subsidiaries. The fact that the parent company did not participate directly in that infringement or encourage it to be committed is not such as to show that those two companies did not constitute a single economic unit (see, to that effect, General Química and Others  v Commission , paragraph 103, and Case C‑520/09 P Arkema  v Commission  [2011] ECR I‑0000, paragraphs 48 to 50). In addition, Eni does not dispute that it was possible for it to coordinate investments within the group even in the absence of such an overlap or its direct participation in the operational management of its subsidiaries.
67. Next, with regard to Eni’s argument that, in essence, it held only the typical prerogatives of a principal shareholder and that the fact of holding them does not in itself amount to the exercise of a decisive influence over the conduct of the subsidiary, it must be borne in mind that the presumption of decisive influence rests on the fact that it is precisely the prerogatives of a parent company which wholly or almost wholly owns its subsidiary which enables that parent company, except in exceptional circumstances, to exercise decisive influence over the conduct of its subsidiary (see, to that effect, Elf Aquitaine  v Commission , paragraph 60), and that, accordingly, proof of the absence of such a decisive influence is to be adduced not by the Commission but by the parent company itself.
68. Nor does that interpretation of the scope of the presumption of actual decisive influence, applied by the Commission and confirmed by the General Court, transform that presumption into an irrebuttable presumption. The fact that it is difficult to prove the opposite in order to rebut a presumption does not imply, of itself, that it is in fact irrebuttable (see Elf Aquitaine  v Commission , paragraph 70). More specifically, to rebut the presumption in question, Eni would have had to show that Versalis could act with complete autonomy not only at the operational level but also at the financial level, which it failed to do.
71. Secondly, with regard to an alleged infringement of the duty to state reasons by the Commission and, subsequently, the General Court, the case-law of the Court of Justice must be borne in mind, in accordance with which the duty to state reasons for an individual decision has the aim, in addition to enabling review by the Courts, of giving the person concerned sufficient indication of whether the decision is vitiated by a defect making it possible to challenge its validity (see, to that effect, Elf Aquitaine  v Commission , paragraph 148 and the case-law cited).
72. In the present case, it is clear that the detailed reasons regarding Eni’s liability for the infringement at issue, given by the Commission in recitals 382 to 398 to the contested decision, meet the requirements of the case-law cited in the preceding paragraph. Although the Commission did not address one by one all the pieces of evidence put forward by Eni before the General Court to rebut the presumption of actual decisive influence, it none the less gave a sufficient indication for it to be established whether the decision is vitiated by a defect making it possible to challenge its validity. Above all, in recital 388 to the contested decision, the Commission stated that Eni’s prerogatives, as they appear in particular from the group’s corporate governance rules, allowed Eni to control the essential aspects of the commercial policy of its subsidiaries.
74. As regards the reasons for the judgment under appeal, in accordance with settled case‑law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the reasoning of the General Court, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, Case C‑202/07 P France Télécom v Commission  [2009] ECR I‑2369, paragraph 29 and the case-law cited).
82. In that regard, it is sufficient to refer to the established case-law that European Union competition law refers to the activities of undertakings (see, inter alia, Joined Cases C‑204/00 P C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 59), that the concept of an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see, inter alia, Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 40) and that, when such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement ( Akzo Nobel and Others  v Commission , paragraph 56 and the case-law cited).
96. As regards, firstly, the relevance of the effects of the infringement in question, it must be borne in mind that, in accordance with settled case-law, the seriousness of infringements of European Union competition law is determined by reference to numerous factors, and that no binding or exhaustive list of criteria to be taken into account has been drawn up (see, inter alia, judgment of 19 December 2012 in Case C‑445/11 P Bavaria  v Commission , paragraph 59 and the case-law cited). With regard, more specifically, to the actual impact of an infringement on the market, that is not a decisive factor for determining the level of fines (see Case C‑272/09 P KME Germany and Others  v Commission  [2011] ECR I‑0000, paragraph 34 and Case C‑389/10 P KME Germany and Others  v Commission [2011] ECR I‑0000, paragraph 44).
97. Moreover, horizontal price or market sharing agreements may be classified as very serious infringements solely on account of their nature, without the Commission being required to demonstrate an actual impact of the infringement on the market (see, inter alia, order in Transcatab  v Commission , paragraph 42). In that case, the actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely amount of EUR 20 million (Case C‑534/07 P Prym and Prym Consumer  v Commission  [2009] ECR I‑7415, paragraph 75).
98. Consequently, had the General Court taken account of the effects of the actual impact of the infringement at issue on the market, assuming that those effects could effectively be measured, it would have been superfluous for it to have done so. In addition, since the infringement in question was intrinsically very serious, taking its actual impact into account would merely have led to an increase in the fine. That complaint is therefore ineffective (see, to that effect, Prym and Prym Consumer  v Commission , paragraph 75, and order in Transcatab  v Commission , paragraphs 43 and 44).
99. Secondly, as regards the complaint alleging that the General Court failed to explain, using its own reasoning, what criteria brought the starting point to EUR 55 million instead of the minimum EUR 20 million, it is sufficient to state that, in paragraph 143 of the judgment under appeal, the General Court gave a detailed explanation of the factors which it took into account to assess the gravity of the infringement. That complaint is therefore manifestly unfounded. The mere fact that the General Court confirmed, in that regard, in the exercise of its unlimited jurisdiction, a number of factors from the assessment made by the Commission in the contested decision cannot call that conclusion into question (see, to that effect, Case C‑89/11 P E.ON Energie  v Commission  [2012] ECR I‑0000, paragraph 133).
102. As regards, fifthly, the complaint alleging an incorrect assessment by the General Court of the allegedly incorrect application of a multiplier of 2 by the Commission and insufficient reasons in the judgment under appeal in that regard, it is settled case-law 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, Arkema  v Commission , paragraph 59 and case-law cited).
103. It is clear that Eni, in that context, does not indicate precisely the legal arguments specifically advanced in support of its application to have the judgment under appeal set aside. It merely asserts, in paragraph 72 of its appeal, that the Commission had not ‘correctly’ assessed the ‘relevant’ calculation factors, including the turnover, and that the General Court did not ‘correctly’ assess that allegedly incorrect application. Similarly, Eni has not explained how the reasons given for the judgment under appeal were incorrect in that regard. In those circumstances, the Court of Justice is not in a position to exercise its judicial review without running the risk of ruling ultra petita (see, by analogy, Arkema  v Commission , paragraph 61 and the case-law cited). Accordingly, those complaints are inadmissible.
109. First of all, the General Court, which had already rejected, in paragraphs 177 to 179 of the judgment under appeal, Eni’s argument that the failure to include Syndial as addressee of the contested decision had ‘serious consequences’ for the application of the maximum amount of 10% provided for in Article 23(2) of Regulation No 1/2003, recalled, in that regard, its case-law in accordance with which that ceiling must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 101 TFEU. The Court of Justice has already confirmed that that case-law is not vitiated by any error of law (see order of 3 May 2012 in Case C‑240/11 P World Wide Tobacco España v Commission , paragraphs 45 and 46).
126. It must be recalled, first of all, that the statement of reasons required by Article 296 TFEU 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 the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others [2012] ECR I‑0000, paragraph 72 and the case-law cited).
127. Thus, in the context of individual decisions, in accordance with the Court’s settled case‑law, the purpose of the obligation to state reasons for an individual decision is both to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is vitiated by a defect which may permit its legality to be contested ( Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraph 73 and the case-law cited).
128. The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the European Union courts ( Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraph 74 and the case-law cited).
129. It follows therefrom that the Commission, when imposing a fine on a company for an infringement of the European Union competition rules and when applying, in calculating the fine, a multiplier to take account of the fact that that company had already been involved in an infringement of the competition rules, is required to provide, with the decision imposing the fine, a statement of reasons enabling the European Union Courts and that company to understand in what capacity and to what extent it was involved in the earlier infringement. In particular, if the Commission considers that that company was part of the addressee undertaking of the decision relating to the earlier infringement, it is for the Commission to give sufficient proper reasons for that assertion.