Judgment of the General Court (Third Chamber) of 6 February 2014 —
Elf Aquitaine v Commission
(Case T‑40/10)
Competition — Agreements, decisions and concerted practices — European markets in tin heat stabilisers and ESBO/esters heat stabilisers — Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement — Fines — Application for annulment — Rights of the defence — Late notification of Commission’s investigation — Duration of the administrative procedure — Liability of a parent company for infringements of competition rules committed by its subsidiaries — Presumption of actual exercise of decisive influence — Duration of the infringements — Limitation — Legitimate interest in finding that an infringement was committed — Fines imposed on a parent company differing in amount from those imposed on a subsidiary — Unlimited jurisdiction
1. Competition — Administrative procedure — Observance of the rights of the defence — Duty to act within a reasonable time — No obligation on the Commission to warn the undertakings concerned of the possibility that measures of investigation or prosecution may be adopted before any statement of objections is sent — Assessment by the EU judicature of a possible infringement of defence rights by late notification of the undertakings concerned — Conditions — Need for those undertakings to rely on a concrete, precise and detailed line of argument (Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003) (see paras 44-54, 67-79)
2. Judicial proceedings — Application initiating proceedings — Formal requirements — Summary statement of pleas (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 90)
3. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Annulment of the decision finding an infringement by reason of excessive duration of the procedure — Condition — Harm to the rights of defence of the undertakings concerned — Excessive duration of the procedure not relevant to the content of the Commission’s decision (Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003) (see paras 99-107, 111-113)
4. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 126, 127, 138-149, 180-190, 201, 202)
5. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Attribution of the practices of a subsidiary to its parent company — Need for an explicit statement of reasons — Scope (Arts 81 EC and 253 EC) (see paras 152-160, 163-173)
6. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Evidential obligations on undertakings challenging the reality or duration of the infringement (Art. 81 EC; Council Regulation No 1/2003, Art. 2) (see paras 214-223, 242-246)
7. Competition — Fines — Amount — Determination — Deterrent effect — Account taken of the size and overall resources of the undertaking in question — Irrelevant — Application of a multiplier to the starting amount — Date to be taken into consideration (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see paras 311-316, 350-363)
8. Competition — Fines — Amount — Determination — Deterrent effect — Parent company and subsidiary having formed, at the time the infringement was committed, an undertaking within the meaning of Article 81 EC and having ceased to exist in that form at the time a decision imposing a fine was adopted — Uplift applied, for deterrent purposes, to the parent company only, calculated by reference to the basic amount of the fine imposed jointly and severally on the companies having belonged to the undertaking and already including a specific uplift for deterrence — Lawfulness (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see paras 317-320, 325-331, 364, 365, 373-377)
9. Competition — Fines — Amount — Determination — Discretion conferred on the Commission by Article 23(2) of Regulation No 1/2003 — No infringement of the principle that penalties must have a proper legal basis (Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 30) (see paras 332-342)
10. Competition — Administrative procedure — Powers of the Commission — Finding of an infringement — Legitimate interest in making the finding — Relevance for understanding the functioning of the cartel as a whole (Art. 81 EC; Council Regulation No 1/2003, Art. 7(1)) (see paras 389, 391-397)
11. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see para. 403)
Re:
| APPLICATION for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers), or, in the alternative, for a reduction of the fines imposed. |
Operative part
The Court:
2. | | Orders Elf Aquitaine SA to pay the costs. |