Versalis SpA v European Commission.
Date: 2013-06-13
51. In accordance with settled case-law, European Union competition law refers to the activities of undertakings and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑280/06 ETI and Others  [2007] ECR I‑10893, paragraphs 38 and 39 and the case-law cited).
52. The Court of Justice has already held that, where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred. In particular, applying penalties in this way is permissible where those entities have been subject to control by the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (see ETI and Others , paragraphs 48 and 49 and the case-law cited).
55. That finding cannot be called into question by the fact that the Court of Justice, in th e judgment in ThyssenKrupp Nirosta v Commission , has stated that the situation referred to in paragraph 52 of this judgment also covers one where the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect (see ThyssenKrupp Nirosta , paragraph 144), since it precisely does not follow from that judgment that the imputation of an infringement to an entity which did not commit that infringement is restricted to cases where the application of a penalty to the company which did commit the infringement would not meet its objective of deterrence.
56. In the judgment in ETI and Others , to which the Court of Justice expressly referred in paragraph 144 of the judgment in ThyssenKrupp Nirosta  v Commission , the Court of Justice held that the Commission was entitled to impute the infringement to a company which had not committed the infringement where the entity which had done so continued to exist as an economic operator on other markets (see ETI and Others , paragraph 45). The Court of Justice based that assessment on the fact that, at the time of the infringement, the companies concerned were held by the same public entity ( ETI and Others , paragraph 50).
57. It must also be noted that the scope of the judgment in ETI and Others  is not limited, contrary to the submissions of Versalis, to cases in which the entities concerned are controlled by a public authority. In paragraph 44 of that judgment, the Court of Justice stated that the fact that the decision to transfer an activity is taken not by individuals, but by the legislature in view of a privatisation, is equally irrelevant. The Court therefore took the view that there could be doubts as to the imputability of an infringement to the successor entity, where, at the very most, both were controlled by a public authority, but those doubts were dispelled by the Court. However, there can be no doubt as regards that imputability where that control, as in the present case, is exercised by a company under private law.
66. It follows from settled case-law that the General Court thus has exclusive jurisdiction, firstly, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, secondly, to assess those facts. Save where the evidence adduced before the General Court has been distorted, the appraisal of the facts therefore does not constitute a point of law which is subject to review by the Court of Justice (see, inter alia, Legris Industries  v Commission , paragraph 51 and the case-law cited).
82. 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 gravity 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 KME Germany and Others  v Commission , paragraph 34 and Case C‑389/10 P KME Germany and Others  v Commission  [2011] ECR I‑0000, paragraph 44).
83. 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 of 13 December 2012 in Case C‑654/11 P 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 ( Prym and Prym Consumer  v Commission , paragraph 75).
84. 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. The argument thus raised by Versalis 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).
85. Secondly, as regards the argument alleging that the General Court did not rule ‘reasonably and coherently’ on the essential factors taken into consideration in order to assess the gravity of the infringement, in that it did not examine the data provided by Versalis, did not give its own assessment of those data or draw the conclusions which followed upon the application for reduction of the fine, it is sufficient to state that, in paragraphs 219 to 233 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).
97. As regards the reasoning relating to the criteria used to set the multiplier for deterrence, the view must be taken that the General Court has given detailed reasons for its assessments in that regard in paragraphs 242 to 250 of the judgment under appeal. That reasoning is not vitiated by any contradiction or error of law and clearly and unequivocally discloses the General Court’s thinking, so that Versalis can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, to that effect, inter alia, Case C‑202/07 P France Télécom  v Commission  [2009] ECR I‑2369, paragraph 29 and the case-law cited).
102. In accordance with settled case-law, the purpose of the multiplier for deterrence and the taking into consideration of the size and global resources of the undertaking in question resides in the impact sought on that undertaking, and the sanction must not be negligible in the light, particularly, of its financial capacity (see, to that effect, Case C‑413/08 P Lafarge  v Commission  [2010] ECR I‑5361, paragraph 104, and the order of 7 February 2012 in Case C‑421/11 P Total and Elf Aquitaine  v Commission , paragraph 82).
103. It is also settled case-law that the General Court, in the context of its unlimited jurisdiction, by mechanical recourse to arithmetical formulas based on the turnover alone of the undertaking concerned, divest itself of its own power of assessment as regards the fixing of fines (see, to that effect, inter alia, Mo och Domsjö  v Commission , paragraph 47). The fixing of an appropriate fine cannot be the result of a simple arithmetical calculation based on turnover (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 121, 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 Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 243).
104. When calculating the fines imposed on undertakings which have participated in a cartel, applying differential treatment to the undertakings concerned is therefore inherent to the powers held by the Commission in that respect. In the context of its discretion, the Commission is required to tailor the penalty according to the conduct and characteristics of those undertakings in order to ensure, in each case, the full efficiency of the European Union competition rules (judgment of 12 November 2009 in Case C‑564/08 P SGL Carbon  v Commission , paragraph 43 and the case-law cited).
105. On the basis of the case-law referred to in paragraph 102 of the present judgment, the Commission is primarily required to ensure that the penalty does not become ‘negligible’ in the light, inter alia, of the financial capacity of the undertakings concerned, which does not, however, require that an undertaking having a particularly high turnover compared to that of other members of a cartel must have a fine increased strictly according to the relation between its turnover and that of all the other undertakings involved in the cartel in question. If that were the case, the fines imposed on the largest undertakings in a cartel, increased on the basis of such an arithmetic method would indeed be likely to have a sufficiently deterrent effect, but would run the risk of being disproportionate to the gravity of the infringement actually committed, particularly where, as in the present case, there is a considerable difference between the turnovers of the undertakings concerned.
115. First of all, it must be borne in mind, as did the General Court in paragraph 161 of the judgment under appeal, that, by virtue of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based. It is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Similar requirements are called for, as the General Court pointed out in paragraph 162 of that judgment, where a submission is made in support of a plea in law.
125. In the present case, as the Commission rightly pointed out at the hearing, it has however retained its interest in bringing proceedings given that the pecuniary penalty imposed on Versalis by the contested decision, together with interest since the date of its adoption, continues to exist in the event that the Court of Justice should uphold the Commission’s cross-appeal, which would not be the case if the Commission were to adopt a fresh decision. Thus, in a similar situation, the Court of Justice has already held that the fact that the Commission prepares a draft regulation with a view to complying with a decision of the General Court does not imply, as such, that the Commission has lost any interest in bringing an appeal (see, to that effect, Case C‑248/99 P France  v Monsanto and Commission  [2002] ECR I‑1, paragraph 31).
139. 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).
140. 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).
141. 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).
142. 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 state sufficient proper reasons for that assertion.