Case T-194/06

SNIA SpA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Acquisition of a company liable for the infringement – Rights of the defence – Consistency between the statement of objections and the contested decision – Duty to state reasons)

Summary of the Judgment

1.      Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment

(Art. 81 EC)

2.      Competition – Community rules – Infringements – Attribution – Legal person responsible for the running of the undertaking at the time of the infringement – Disappearance

(Art. 81(1) EC)

3.      Procedure – Introduction of new pleas during the proceedings – Conditions – New plea – Meaning

(Rules of Procedure of the General Court, Art. 48(2))

4.      Competition – Administrative procedure – Commission decision finding an infringement –Decision not identical to the statement of objections – Infringement of the defence rights – Condition

(Council Regulation No 1/2003, Art. 27(1))

1.      In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement there is a simple presumption that the parent company exercises actual decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by the parent company in order to presume that that parent company exercises a decisive influence over that 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 that parent company, which bears the burden of rebutting that presumption, adduces evidence to establish that its subsidiary acts independently on the market.

(see paras 49-50)

2.      When an entity that has committed an infringement of the competition rules is subject to a legal or organisational change, this change does not necessarily create a new undertaking free of liability for the infringement, when, from an economic point of view, the two entities are identical.

For the effective enforcement of competition law, it may become necessary to impute liability to the new operator of the undertaking which committed the infringement if the new operator may in fact be regarded as the successor to the original operator.

That ‘economic continuity’ test applies in specific circumstances, such as, inter alia, where the legal person responsible for operating the undertaking has ceased to exist in law after the infringement has been committed or in cases of internal restructuring of an undertaking, in view of the structural links between the initial operator and the new operator of the undertaking, where the initial operator has not necessarily ceased to have a legal existence but no longer carries out an appreciable economic activity on the relevant market.

An undertaking cannot legitimately rely on the fact that, despite its merger with one of the companies constituting the economic entity liable for an infringement, it had not, in actual fact, taken on the physical and human elements which contributed to the infringement. When an undertaking ceases to exist, upon being merged with an acquirer, the latter takes on its assets and liabilities for infringements of European Union law. In such cases, the liability for the infringement committed by the undertaking taken over may be imputed to the acquirer.

(see paras 56-58, 61-62)

3.      New pleas in law may not be introduced in the course of proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. Nevertheless, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible.

(see para. 73)

4.      The procedural guarantee to which Article 27(1) of Regulation No 1/2003 relates applies the principle of respect for the rights of the defence, which requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential matters used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it.

Nevertheless, the legal characterisation of the facts made in the statement of objections can, by definition, be only provisional, and a subsequent Commission decision cannot be annulled on the sole ground that the definitive conclusions drawn from those facts do not correspond precisely with that intermediate characterisation. In clarifying, in law, that characterisation in its final decision, the Commission must be able to grant a greater importance to matters which had previously been regarded as secondary, provided however that it relies only on facts on which those concerned have had an opportunity to make known their views and provided that, in the course of the administrative procedure, it has made available the evidence necessary for the defence The Commission is required to hear the addressees of a statement of objections and, where necessary, to take account of any observations made in response to the objections by amending its analysis specifically in order to respect their rights of defence.

A decision based on essential matters in respect of which the undertaking concerned has not been able to defend itself must be annulled, regardless of whether the liability of the undertaking can be upheld in the light of other matters.

(see paras 79-81, 87)