Case T‑343/06
Shell Petroleum NV and Others
v
European Commission
(Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Joint control — Fines — Aggravating circumstances — Role of instigator and leader — Repeated infringement — Duration of the infringement — Rights of the defence — Unlimited jurisdiction — Conduct of the undertaking during the administrative procedure)
Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012
1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiary — Possibility of Commission corroborating the presumption with evidence to establish the actual exercise of decisive influence — No obligation
(Arts 81 EC and 82 EC)
2. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiary — Evidential obligations of the company seeking to rebut that presumption
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2)
3. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiary — Subsidiary jointly held by two parent companies — Disappearance of one of the parent companies during the administrative procedure — No effect
(Arts 81 EC and 82 EC) Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiary
4. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiary — Indirect holding of the subsidiary — Group comprising a large number of operating companies
(Arts 81 EC and 82 EC)
5. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Control exercised by the parent company over its subsidiary — No need for connection with the infringing conduct of the subsidiary
(Arts 81 EC and 82 EC)
6. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Communication of responses to the statement of objections — Conditions — Limits — Relevant provisions of the Commission notice on access to the file — Legality
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Section 27)
7. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — No systematic communication of replies to a statement of objections — No infringement of defence rights
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27)
8. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Reply to a statement of objections — Document used in evidence — No obligation systematically to communicate the whole of that document
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27)
9. Competition — Administrative procedure — Observance of the rights of the defence — Documents of use in the defence — Assessment by the Commission alone — Not permissible — Principle inapplicable to the replies given by the parties to the statement of objections
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2))
10. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Commission’s decision-making practice — Indicative character
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Regulation No 773/2004; Commission Notice 2005/C 325/07, Sections 8 and 27)
11. Actions for annulment — Review of legality — Criteria — Account taken only of factual and legal elements existing on the date on which the disputed measure was adopted
(Art. 263 TFEU)
12. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication — Subsequent communication of more precise information complementing a reasoning already sufficient in itself — No effect
(Arts 81 EC, 82 EC and 253 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03)
13. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of undertaking’s lack of cooperation during the administrative procedure — Increase in the fine — Condition
(Arts 81 EC and 82 EC; Art. 261 TFEU; Council Regulations No 17, Art. 17 and No 1/2003, Arts 18(2) and (3), 23(1) and 31)
14. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader or instigator of the infringement — Necessary distinction
(Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 2, third para.)
15. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of instigator of the infringement — Concept — Proof based on a single event — Lawfulness — Condition
(Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 2)
16. Agreements, decisions and concerted practices — Agreements between undertakings — Evidence of the infringement — Witness statements of employees of a company involved in the infringement — Admissibility — Probative value — Principle of the free assessment of evidence
(Art. 81 EC; Rules of Procedure of the General Court, Arts 68 to 76)
17. Competition — Administrative procedure — Hearings — Hearing of certain persons — Discretion of the Commission — Limit — Observance of the rights of the defence
(Arts 81 EC and 82 EC; Council Regulation 1/2003, Art. 27(2))
18. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader of the infringement — Concept — Criteria for identification
(Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)
19. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Account taken of additional information not mentioned in the statement of objections or the decision
(Arts 81 EC and 82 EC; Art. 261 TFEU; Council Regulation No 1/2003, Art. 31)
20. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Similar infringements successively committed by two subsidiaries of the same parent — No imputation of the infringement to the parent company in the earlier decision – Not relevant
(Arts 81 EC and 82 EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)
21. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Rate of increase of the basic amount of the fine — Discretion of the Commission
(Arts 81 EC and 82 EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)
22. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Introduction of new pleas during the proceedings — Account taken thereof in the exercise of unlimited jurisdiction — Conditions
(Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2))
1. See the text of the decision.
(see paras 36-41)
2. See the text of the decision.
(see paras 42, 54, 60)
3. In competition matters, where two parent companies jointly hold a subsidiary as to 100%, the mere fact that one of those parent companies has disappeared has no bearing on the question of applying the presumption that a parent company exercises a decisive influence over its subsidiary, since undertakings may not escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes, in order not to compromise the objective of suppressing conduct that infringes the competition rules and preventing its reoccurrence by means of deterrent penalties.
Moreover, the Commission is entitled to apply the presumption that a parent company in fact exercises a decisive influence over its subsidiary where two companies are placed in a position analogous to that in which a single company owns the entire share capital of its subsidiary.
(see paras 44-45)
4. In competition matters, the existence of intermediary companies between the subsidiary and the parent company does not affect the possibility of applying the presumption that the parent company in fact exercises decisive influence over its wholly‑owned subsidiary. Moreover, a parent company may be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group.
(see para. 52)
5. See the text of the decision.
(see para. 61)
6. In proceedings for breach of the competition rules, it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure. Consequently, the other parties’ replies to the statement of objections are not, in principle, included in the documents of the investigation file that the parties may consult. However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence. The same applies where the Commission relies on such a document in order to prove the role of instigator or leader of one of the undertakings concerned.
Paragraph 27 of the Notice on the rules for access to the Commission file in cases pursuant to Articles 81 EC and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation No 139/2004 is consistent with the case-law that, while, as a general rule, no access will be granted to other parties’ replies to the statement of objections, a party may, however, be granted access to those replies where such documents may constitute new evidence, whether of an incriminating or of an exculpatory nature, pertaining to the allegations concerning that party in the statement of objections.
(see paras 84-85)
7. In competition matters, systematic failure to communicate other undertakings’ replies to the statement of objections is not contrary to the principle of the observance of the rights of the defence. That principle means that the Commission must, during the administrative procedure, disclose to the undertakings concerned all the facts, circumstances or documents on which it relies, so as to enable them to make known their views on the truth and relevance of the facts and circumstances put forward and on the documents used by the Commission in support of its allegations.
Refusal by the Commission to communicate documents subsequent to notification of the objections where those documents have been requested by a company is unlawful, in the case of an exculpatory document, only if that company has established that non‑disclosure of that document was able to influence the course of the proceedings and the content of the Commission’s decision to its disadvantage.
(see paras 86, 88)
8. In proceedings for breach of the competition rules, a document subsequent to notification of the objections used by the Commission as evidence in its decision does not necessarily have to be communicated in its entirety to the undertakings concerned. The Commission is required, in order to enable the undertaking concerned to express its views effectively on that evidence, to communicate to it only the relevant passage of the document in question, placed in context if that is necessary to understand it.
(see para. 87)
9. In proceedings for breach of the competition rules, the principle that it cannot be for the Commission alone, which notifies any objections and adopts the decision imposing a penalty, to determine the documents of use in the defence of the undertaking concerned relates to documents within the file compiled by the Commission. Therefore, that principle cannot apply to replies given by other parties concerned to the statement of objections.
(see para. 89)
10. In proceedings for breach of the competition rules, the Commission is not bound by its practice in earlier decisions in relation to full notification of the replies to the statement of objections, since the lawfulness of its decisions is assessed solely on the basis of the rules applicable to the Commission, including, in particular, Regulation No 1/2003, Regulation No 773/2004, relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC, and the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 EC and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Council Regulation No 139/2004, as interpreted by the EU judicature.
(see para. 90)
11. See the text of the decision.
(see para. 104)
12. See the text of the decision.
(see paras 108-113, 258-259)
13. The review of legality of a Commission decision imposing a fine for breach of EU competition rules is supplemented by the unlimited jurisdiction which the EU judicature was afforded by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. The review provided for by the Treaties thus involves, in accordance with the requirements of the principle of effective judicial protection in Article 47 of the Charter of Fundamental Rights, review by the EU judicature of both the law and the facts, and means that it has the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. Moreover, as regards the application of Article 81 EC, there is no requirement that the addressee of the statement of objections must challenge, during the administrative procedure, the various matters of fact or law contained therein, if it is not to be barred from doing so later at the stage of judicial proceedings.
It is therefore for the General Court, in the exercise of its unlimited jurisdiction, to assess, on the date on which the Court adopts its decision, whether the applicants received a fine whose amount properly reflects the gravity of the infringement in question.
However, in order to ensure the effectiveness of Article 18(2) and (3) of Regulation No 1/2003, the Commission is entitled to compel undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, on condition only that an undertaking is not compelled to provide the Commission with answers which might involve an admission on its part of the existence of an infringement which it is incumbent on the Commission to prove. An undertaking to which the Commission addresses a request for information pursuant to Article 18 of Regulation No 1/2003 is therefore bound by an obligation to cooperate actively and may be punished by a specific fine laid down in Article 23(1) of that regulation, which may represent up to 1% of total turnover if it provides, intentionally or negligently, incorrect or misleading information. It follows that, in the exercise of its unlimited jurisdiction, the Court may take account, where relevant, of an undertaking’s lack of cooperation and consequently increase the fine imposed on it for infringement of Articles 81 EC or 82 EC, on condition that that undertaking has not been punished in respect of that same conduct by a specific fine based on the provisions of Article 23(1) of Regulation No 1/2003.
That could for example be the case where, in reply to a request to that effect from the Commission, an undertaking has failed to submit, intentionally or negligently, during the administrative procedure, decisive evidence for the setting of the amount of the fine and which was or might have been in its possession at the time of adoption of the contested decision. Although, in the exercise of its unlimited jurisdiction, the Court is not prevented from taking such evidence into consideration, the fact remains that an undertaking which relies on such evidence only at the judicial stage of the proceedings, thus prejudicing the purpose and the proper conduct of the administrative procedure, exposes itself to the risk that that factor will be taken into consideration when the Court determines the appropriate amount of the fine.
(see paras 116-119)
14. See the text of the decision.
(see para. 140)
15. In order to be classified as an instigator of a cartel, an undertaking must have persuaded or encouraged other undertakings to establish the cartel or to join it. By contrast, it is not sufficient merely to have been a founding member of the cartel. That classification should be reserved to the undertaking which has taken the initiative, if such be the case, for example by suggesting to the other an opportunity for collusion or by attempting to persuade it to do so. The EU judicature does not however require the Commission to have information regarding the development or the detailed planning of the cartel.
The role of instigator concerns the moment at which a cartel was established or enlarged, and it is therefore conceivable that several undertakings might simultaneously play a role of instigator within the same cartel.
Moreover, in principle there is nothing to prevent the Commission from relying on a single event in order to establish that an undertaking played a role of instigator in a cartel, on condition that it is possible to establish with certainty from that single event that that undertaking persuaded or encouraged other undertakings to establish the cartel or to join it.
(see paras 155-156)
16. See the text of the decision.
(see paras 160-161)
17. See the text of the decision.
(see paras 170-171)
18. In order to be classified as a leader in a cartel, an undertaking must have been a significant driving force for the cartel and have borne individual and specific liability for the operation of the cartel. That factor must be assessed in the light of the overall context of the case. It may, inter alia, be inferred from the fact that the undertaking, through specific initiatives, voluntarily gave a fundamental boost to the cartel. It may also be inferred from a combination of indicia which reveal the determination of the undertaking to ensure the stability and success of the cartel.
That is the case where the undertaking participated in cartel meetings on behalf of another undertaking which did not attend them and notified that other undertaking of the results of those meetings. The same applies where it is shown that that undertaking played a central role in the actual operation of the cartel, for example by organising various meetings, collecting and distributing information within the cartel, and by most often suggesting proposals relating to the operation of the cartel.
Moreover, the fact of actively ensuring compliance with the agreements concluded within the cartel is decisive evidence of the role of leader played by an undertaking.
By contrast, the fact that an undertaking exerted pressure, or even dictated the conduct of other members of the cartel is not a necessary precondition for that undertaking to be described as a leader in the cartel. The market position enjoyed by the undertaking and the resources at its disposal also cannot constitute evidence of a role of leader in the infringement, even though they form part of the context in which such evidence must be assessed.
The Commission is entitled to find that several undertakings acted as a leader in a cartel.
(see paras 198-202)
19. In the exercise of its unlimited jurisdiction recognised by Article 261 TFEU and Article 31 of Regulation No 1/2003, the General Court has the power to assess the appropriateness of the amount of fines imposed for breach of EU competition rules, and may base its reasoning for that purpose, inter alia, on additional information which is not mentioned in the statement of objections or the Commission’s decision.
(see para. 220)
20. Since EU competition law recognises that different companies belonging to the same group form an economic entity and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not decide independently upon their own conduct on the market, with the result that the Commission may impose a fine on the parent company for the practices of group companies, the Commission is entitled to find recidivism where one group company commits an infringement of the same type as that for which another was previously punished.
Since the Commission is able, but under no obligation, to impute liability for the infringement to a parent company, the mere fact that the Commission did not impute liability in an earlier decision does not mean that it is required to make the same assessment in a subsequent decision.
Consequently, where the subsidiary concerned by an earlier decision and the subsidiary concerned by a new decision of the Commission are both indirectly wholly owned by the same parent companies, the fact that, in the earlier decision, the Commission chose to impute the infringement to the first subsidiary rather than to its parent companies has no effect on the possibility of applying the case-law on recidivism in the new decision. Moreover, the disappearance of one of the parent companies cannot have any consequence regarding the possibility of applying the aggravating circumstance of repeated infringement to the undertaking which continued to exist.
Finally, the Commission is not required to adduce evidence that that parent company had in fact exercised decisive influence over the unlawful conduct of its subsidiary which formed the subject-matter of the earlier decision, where that subsidiary, at the time when the infringements were committed, was jointly wholly owned by the abovementioned parent companies.
(see paras 248, 250, 252-253, 255, 263)
21. See the text of the decision.
(see paras 267-268)
22. It follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the General Court that the original application must contain, inter alia, a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a plea which may be regarded as amplifying a submission put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible.
Moreover, in the exercise of its unlimited jurisdiction, the Court may allow new pleas and arguments only on the twofold condition that those pleas and arguments are effective for the purposes of that jurisdiction, and that they are not based on grounds of illegality different from those raised in the application.
(see paras 271-272)