JUDGMENT OF THE GENERAL COURT (Third Chamber)

13 December 2013 (*)

(Competition – Agreements, decisions and concerted practices – Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Imputability of the unlawful conduct – Presumption of innocence – Fines – Article 23 of Regulation (EC) No 1/2003 – 2006 guidelines on the method of setting fines – Mitigating circumstances – Infringement committed as a result of negligence – Infringement authorised or encouraged by the public authorities)

In Case T‑399/09,

Holding Slovenske elektrarne d.o.o. (HSE), established in Ljubljana (Slovenia), represented by F. Urlesberger, lawyer,

applicant,

v

European Commission, represented initially by J. Bourke and N. von Lingen, and subsequently by N. von Lingen and R. Sauer, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it relates to the applicant, and, in the alternative, for the reduction of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 10 July 2013,

gives the following

Judgment

 Background to the dispute

1        By Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’), the Commission of the European Communities found that the main suppliers of calcium carbide and magnesium for the steel and gas industries had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a single and continuous infringement from 7 April 2004 until 16 January 2007. That infringement consisted of market-sharing, quota-fixing, customer-allocation, price-fixing and the exchange of sensitive commercial information concerning prices, customers and sales volumes in the EEA, with the exception of Spain, Ireland, Portugal and the United Kingdom.

2        The procedure was initiated following an application for immunity, within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’), submitted on 20 November 2006 by Akzo Nobel NV.

3        By the contested decision [Article 1(g)], the Commission found that the applicant, Holding Slovenske elektrarne d.o.o. (HSE), had participated in the infringement from 7 April 2004 to 20 December 2006. In particular, it is clear from recital 263 to the contested decision that the Commission took the view that, during a period which includes the period referred to above, employees from TDR-Metalurgija d.d. (‘TDR’) had been directly involved in the agreements and/or concerted practices of the cartel at issue. For the reasons set out in recital 264 to the contested decision, the Commission considered that the applicant had exercised decisive influence over the conduct of TDR, at least during the period 7 April 2004 to 20 December 2006, and that, therefore, during that period, those two companies formed part of the same economic unit, with the result that the applicant could be held liable for the infringement of the competition rules in which TDR was involved.

4        By Article 2(i) of the contested decision, the Commission imposed a fine of EUR 9.1 million on the applicant in respect of the infringement referred to above.

 Procedure and forms of order sought

5        By application lodged at the Registry of the General Court on 6 October 2009, the applicant brought the present action.

6        After a change in the composition of the Chambers of the Court, the Judge-Rapporteur initially appointed was attached to the Third Chamber, to which the present case was consequently assigned. Owing to the partial renewal of the Court, the present case was assigned to a new Judge-Rapporteur sitting in that Chamber.

7        The parties presented oral argument and replied to the questions put by the Court at the hearing on 10 July 2013.

8        The applicant claims that the Court should:

–        annul, in so far as it relates to the applicant, Article 1(g) and Article 2(i) of the contested decision;

–        in the alternative, reduce the fine imposed on it in Article 2(i) of the contested decision;

–        order the Commission to pay the costs.

9        The Commission contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

10      In support of its application, the applicant relies on four pleas in law claiming, first, incorrect imputation to it of TDR’s unlawful conduct, secondly, infringement of the presumption of innocence, thirdly, incorrect inclusion of a ‘deterrence factor’ in the fine imposed on it and, fourthly, failure by the Commission to take into account mitigating circumstances relating to it.

 The first plea in law, claiming incorrect imputation to the applicant of TDR’s unlawful conduct

 Review of the case-law relating to the imputation to the parent company of an infringement committed by its subsidiary

11      According to settled case-law, the concept of an undertaking refers to any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see Case C‑90/09 P General Química and Others v Commission [2011] ECR I‑1, paragraph 34 and the case-law cited).

12      The Court has also stated that, in the same context, the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see General Química and Others v Commission, cited in paragraph 11 above, paragraph 35 and the case-law cited).

13      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 (see General Química and Others v Commission, cited in paragraph 11 above, paragraph 36 and the case-law cited). However, as the Court has also indicated, the infringement of competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 57).

14      As regards the question of whether, in those circumstances, a legal person who is not the perpetrator of the infringement may nevertheless be penalised, it is apparent from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular when, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links which tie those two legal entities (see General Química and Others v Commission, cited in paragraph 11 above, paragraph 37 and the case-law cited).

15      In such a situation, since the parent company and its subsidiary are part of the same economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see General Química and Others v Commission, cited in paragraph 11 above, paragraph 38 and the case-law cited).

16      The Court has also stated in that regard that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, the parent company can exercise decisive influence over the conduct of the subsidiary and, moreover, there is a rebuttable presumption (‘the shareholding presumption’) that the parent company does in fact exercise such decisive influence. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see General Química and Others v Commission, cited in paragraph 11 above, paragraphs 39 and 40 and the case-law cited; see also Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I‑2239, paragraph 97, and Case C‑289/11 P Legris Industries v Commission [2012], ECR I‑0000, paragraph 46).

 Contested decision

17      Recitals 264 to 268 to the contested decision state, as regards the imputation to the applicant of TDR’s unlawful conduct, the following:

‘(264) [HSE] exercised decisive influence over the conduct of TDR, at least during the period 7 April 2004 to 20 December 2006 …, and these companies therefore constituted a single undertaking as demonstrated by the following structural and organisational links:

–        HSE referred in its annual reports to TDR as one of the companies that comprises the HSE Group …

–        HSE describes itself also as a single group: “In the structure of sales revenues, electrical energy accounted for 93% of net sales revenue, and other products and services accounted for 7% of net sales revenue of the HSE group. Other activities comprise, as their major part, the production of calcium carbide, ferrosilicon, and complex alloys.” …

–        TDR’s turnover was also included in the consolidated financial statements of HSE … demonstrating that the income generated by the subsidiary contributed to the economic performance data of the parent.

–        TDR formed part of the multi-utility division of HSE …

–        [P]rior to the selling of TDR, HSE’s supervisory board granted an approval for this sale …

–        TDR’s supervisory board consisted mainly of representatives of HSE. Two out of three members of TDR’s supervisory board – including its president – were representatives of HSE ... The third member was appointed by TDR’s “works council”. The representative of HSE that served as president of TDR’s supervisory board wrote in 2004 in an article that was published on HSE’s website: “As president of the supervisory board of the company TDR …, which is part of the group HSE, I am happy with the collaboration we have with the management of the company TDR … I believe that the communication between us is good and the supervisory board has all the relevant information to perform its duty in a quality way” …

–        [F]urthermore, HSE received periodic reports from TDR. These reports set out TDR’s market situation; described price changes of raw materials in the past and the future and commented upon the impact of these factors on the production, sales and business in general of TDR. In addition TDR provided HSE with reports on its sales (effected and planned) per product. For calcium carbide, TDR also explained the volumes supplied to other suppliers, the main customers and the effect of (expected) price changes on the market ...

–        [M]oreover, inspection documents found at TDR prove that there was even more detailed reporting between TDR and its parent company HSE. Various reports were found that were made for management and for the supervisory board of HSE, explaining the situation on the calcium carbide market and the problems TDR was facing ... These reports also describe the competitors of TDR on the market.

–        TDR also confirmed that HSE had an influence in the appointment of its management personnel, and that it benefited from cheaper electricity prices during the period when it was controlled by HSE ...

(265) These structural and personal links prove that there was a unitary organisation and that HSE which, until 20 December 2006 owned the capital of TDR to 74.44%, actually exercised decisive control over the business conduct of TDR. The elements mentioned in recital (264) fall under the normal business behaviour of an investor of this size. Accordingly, it is held that during the period 7 April 2004 to 20 December 2006 TDR and HSE constituted a single undertaking. Therefore, the Commission has decided to address this decision to TDR … and to [HSE].

(266) In its reply to the Statement of Objections … HSE argues that it did not know or could have known about the illegal cartel activities. The Commission’s reply to this argument is set out in recital (224).

(267) Moreover, HSE claims that it did not form a single economic unit with TDR, for several reasons: the inclusion of TDR in the annual report is due to legal obligations, TDR’s sales played only a minor economic role in the group’s overall turnover, the parent company never benefitted economically from the subsidiary, the prior approval of the parent company when selling the subsidiary is usual management practice for a company owning 74.44% of the subsidiary’s capital, it is usual practice to have two out of three members of the parent company in the supervisory board of the subsidiary given the size of the parent company’s stake holding; receiving periodic reports on the market situation of the subsidiary is normal practice, the parent company was only monitoring the subsidiary in order to have no doubts as to the correctness and success of the management of the subsidiary; and it is normal for an investor of the size of HSE to demand positive results and to monitor performance and diligence in order to keep losses to a minimum.

(268) Almost all of these elements prove the Commission’s position and none of them show that HSE did not have decisive influence. Even if it were true that TDR’s sales played a minor role for the turnover, this in itself does not in any way prove that HSE allowed TDR complete autonomy in defining its conduct on the market ... The indicators taken in their entirety reveal a permanent and intense monitoring of the economic position of TDR on the market by HSE, as indeed acknowledged by HSE in its reply to the Statement of Objections. Therefore, in line with the case-law … it is held that HSE did not adduce evidence to rebut that it actually exercised decisive influence over TDR. Therefore, HSE may be held liable for the illegal behaviour of TDR and the decision is addressed to HSE as well.’

 Analysis of the plea

–       Introductory remarks

18      By its first plea in law, the applicant seeks to call into question the Commission’s conclusion that the applicant and its subsidiary TDR formed a single economic unit and that the applicant could be held liable for the latter’s infringement of the competition rules.

19      By its first complaint, it claims that the Commission erred in law in applying the shareholding presumption, whereas it owns 74.44%, and not 100%, of the shares of its subsidiary involved in the infringement. The applicant then puts forward a series of arguments which, essentially, repeat and expand the arguments set forth in its reply to the statement of objections, which are summarised in recital 267 to the contested decision, intended to call into question the conclusion that it exercised a decisive influence over its subsidiary.

20      It is necessary to examine, first of all, the complaint alleging unjustified application of the shareholding presumption.

–       The alleged unjustified application of the shareholding presumption

21      The applicant claims that the Commission erred in law, in that it applied the shareholding presumption on the basis of a shareholding of only 74.44%, whereas, in order to apply that presumption, the parent company must hold all (100%) of its subsidiary’s shares.

22      That complaint is based on a misreading of the contested decision and must be rejected. As the Commission rightly submits, it did not rely on the shareholding presumption in the contested decision, but rather it listed, in recital 264 to the contested decision, a series of indicia showing, in its view, that the applicant exercised a decisive influence, within the meaning of the case-law cited in paragraph 14 above, over its subsidiary TDR.

23      The applicant relies on the statement, in recital 268 to the contested decision, that it ‘did not adduce evidence to rebut that it actually exercised decisive influence over TDR’. At the hearing it added, in that respect, that the Slovenian version of the contested decision, which was sent to it, used the term ‘domneva’ which means ‘presumption’.

24      However, placed in its proper context, the statement in question, such as it appears in the contested decision, can only be understood as meaning that the factors relied on by the applicant and summarised in recital 267 to the contested decision do not call into question the Commission’s conclusion in recital 265, based on the indicia listed in recital 264, that HSE exercised a decisive influence over its subsidiary and formed, with that subsidiary, an economic unit within the meaning of the case-law. That is also the case even if the term ‘domneva’, used in the Slovenian version of recital 268 to the contested decision, may, viewed in the abstract, mean ‘presumption’. Indeed, given the context of the statement using that term, it should be clear to the applicant that the Commission did not rely on the shareholding presumption, but merely intended to express its belief that the factors relied on by the applicant did not call into question the indicia listed in recital 264 to the contested decision, showing its decisive influence over its subsidiary TDR.

25      The statement in question, in recital 268 to the contested decision, therefore does not show an erroneous application of a presumption by the Commission, but is rather the conclusion that the latter drew from its examination of the factors relied on by the applicant to challenge the indicia referred to in recital 264 which, as the Commission noted, were also referred to in the statement of objections sent to the applicant.

26      Faced with the Commission’s explanations summarised in paragraph 22 above, the applicant claims that the Commission’s argument amounts to an extension of the scope of the shareholding presumption in any case where a company has a majority interest in another company, since the Commission implicitly assumed that the conditions of application of the shareholding presumption were met and concluded that the applicant had failed to prove otherwise.

27      That line of argument cannot be upheld either. It is clear from a reading of recitals 264 and 265 to the contested decision that the Commission did not rely on any presumption, whether explicit or implicit; rather, it clearly listed the factors showing, in its view, the exercise of a decisive influence by the applicant over its subsidiary. It was also required to analyse the arguments and factors to the contrary put forward by the applicant in its response to the statement of objections, which it did in recital 266 et seq. to the contested decision. The sentence in recital 268 invoked by the applicant (see paragraph 23 above) simply states the result of that analysis, namely that the Commission found that those arguments and factors did not call into question the conclusion relating to the exercise of a decisive influence. The applicant contests the validity of that conclusion in the remainder of its argument put forward in the present plea, which will be examined below. However, it cannot be accepted that the Commission erred in law in wrongly applying the shareholding presumption in relation to the situation of the applicant and its subsidiary TDR.

28      In the light of that conclusion and taking into consideration the fact that, since the shareholding presumption is not applicable, it was for the Commission to prove that the applicant exercised a decisive influence over its subsidiary TDR, it is now necessary to examine whether the various pieces of evidence set out in in recital 264 to the contested decision are capable, by themselves, of providing such proof. If that is the case, it will be necessary, lastly, to examine whether that evidence and the conclusion that the applicant exercises a decisive influence over its subsidy may be called into question by the various arguments put forward by the applicant.

–       Review of the case-law

29      For the purpose of that analysis, it must be recalled that, according to the case-law referred to in paragraph 14 above, in order to impute the anti-competitive conduct of a subsidiary to its parent company, the Commission cannot merely find that that company ‘was able to’ exert such a decisive influence over the behaviour of its subsidiary on the market, without checking whether that influence actually was exerted. On the contrary, it is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual evidence (see Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136 and the case-law cited).

30      As the Court held in Case C‑407/08 P Knauf Gips v Commission ([2010] ECR I‑6375, paragraph 100), in order to decide whether a company determines its conduct on the market independently, account must be taken of all the relevant factors relating to the economic, organisational and legal links which exist between it and the company in the same group that is considered to be responsible for the actions of that group, which may vary from case to case and cannot therefore be set out in an exhaustive list. The existence of an economic unit may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such a unit (Knauf Gips v Commission, paragraph 65).

31      By way of guidance only it may be pointed out that, in the case-law, analysis of the existence of a single economic entity among a number of companies forming part of a group has involved consideration of the question whether the parent company had influenced the pricing policy of its subsidiary, production and distribution activities, sales objectives, gross margins, sales costs, cash-flow, stocks and marketing (see Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 64 and the case-law cited).

32      Lastly, it is also apparent from the case-law referred to in paragraph 14 above that the conduct of the subsidiary on the market cannot be the only factor which enables the liability of the parent company to be established, but is only one of the signs of the existence of an economic unit (Case C‑97/08 P Akzo Nobel and Others v Commission, cited in paragraph 13 above, paragraph 73).

–       Analysis of the indicia of a decisive influence referred to in the contested decision

33      First, it must be pointed out that, as can be seen from a reading of the first to fourth indents of recital 264 to the contested decision, the first piece of evidence on which the Commission relied in order to find that the applicant and TDR were part of the same economic unit is the fact, deduced from various indicia referred to in those indents, that the applicant itself presented TDR as one of the companies that comprises the HSE group and, in particular, its ‘multi-utility’ division.

34      In that regard, it must be recalled that, in Case T‑66/99 Minoan Lines v Commission ([2003] ECR II‑5515, paragraphs 137 and 138), the Court took into consideration the fact that a company had responded to a request for information from the Commission using the notepaper of another company in the same group, in order to support its conclusion that one of the two companies concerned exercised a decisive influence over the other and that they both formed part of the same economic entity.

35      Likewise, in Knauf Gips v Commission, cited in paragraph 30 above (paragraph 104), in concluding that the infringement committed by the personnel of other entities was correctly imputed to the applicant company in that case, the Court took into consideration the fact that most of the documents seized by the Commission during the inspections had been drafted on the headed stationery of that company.

36      It can be inferred from that case-law that, in general, the fact that two companies present themselves towards the outside world as forming part of the same group constitutes relevant evidence which, without necessarily being sufficient in itself, may be taken into consideration along with other evidence in order to justify the conclusion that they form part of the same economic unit, with the result that the infringement committed by one may be imputed to the other. Thus, the Commission was right to take into consideration the indicia set forth in the first four indents of recital 264 to the contested decision, in order to impute to the applicant liability for the infringement committed by TDR.

37      Secondly, in order to establish that the applicant exercised a decisive influence over TDR and, accordingly, that an economic unit existed between them, the Commission relied on various indicia of structural and organisational links between the two companies, as set forth in the fifth to ninth indents of recital 264 to the contested decision. Essentially, it follows from those factors that TDR’s supervisory board was, since the acquisition of 74.44% of its capital by the applicant, controlled by representatives of the latter, that TDR sent regular reports to the applicant regarding its commercial activities and that the applicant exercised influence in the appointment of its subsidiary’s management personnel.

38      In that regard, it must be pointed out that, according to the case-law referred to in paragraph 30 above, organisational links are among the factors capable of proving the existence of an economic unit between the parent company and its subsidiary. Moreover, it must be noted that the European Union judicature considers that representation of the parent company in the management bodies of its subsidiary is a relevant piece of evidence of the exercise of effective control over the latter’s commercial policy (judgment of 27 September 2012 in Case T‑344/06 Total v Commission, not published in the ECR, paragraph 73; see also, to that effect, Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 137, and Case T‑197/06 FMC v Commission [2011] ECR II‑3179, paragraph 150).

39      Accordingly, it must be concluded that the indicia referred to in recital 264 to the contested decision constitute relevant and consistent evidence, showing that the applicant exercised decisive influence over its subsidiary TDR, with the result that they constituted an economic unit during the infringement period, which justifies the imputation to the applicant of liability for the infringement committed by its subsidiary.

40      It is now necessary to examine whether that conclusion may be called into question by the various arguments put forward by the applicant. In that respect, it is appropriate to examine, first of all, the applicant’s arguments relating to the history and the circumstances of its acquisition of its shareholding in TDR.

–       The circumstances of the acquisition by the applicant of a shareholding in TDR

41      The applicant claims that it did not become a shareholder of TDR voluntarily, but rather acquired its shareholding as a result of a decision of the Republic of Slovenia, which owns 100% of its shares, to transfer to the applicant the shareholding previously held by Elektro Slovenija d.o.o. (‘Eles’). Because of a modification of the applicable Slovenian legislation, the activities of Eles, a company also wholly owned by the Republic of Slovenia, were limited to the management of the electricity network and the distribution of electricity and were, therefore, incompatible with the shareholding in TDR. The Republic of Slovenia acquired Eles’ shareholding in TDR in 2002 and transferred it to HSE soon after, in the form of a contribution in kind to the share capital of HSE. The management board of HSE was informed at the time that it was a temporary solution, while the Republic of Slovenia attempted to find a strategic private owner for the shareholding in TDR. That objective had been included in the provisions adopted by the Slovenian Parliament since 2003 and was finally achieved in December 2006.

42      According to the applicant, since it was informed from the outset that its shareholding in TDR would be short-term, it did not strive either to integrate that company in its group or to achieve synergy effects. It abstained from exercising a decisive influence over TDR and acted as a financial investor, whose objective was to manage its shareholding in order to maintain its value. It claims that, in any event, the exercise of such influence would hardly have been possible, since the two companies carried out completely different commercial activities and the applicant had neither the know-how necessary to manage TDR’s activities nor even an interest in doing so. Accordingly, TDR was integrated in the ‘multi-utility’ division of the applicant’s group. That division grouped together the subsidiaries whose activities differed from the main activities of HSE and of its subsidiaries active in the energy production sector. That division was considered as a sort of ‘side track’, reserved for those subsidiaries which could not be integrated in the business development strategy of HSE. The ‘multi-utility’ division never constituted an organisational unit with common management or resources.

43      The applicant notes that recital 22 in the preamble to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) states that ‘[t]he arrangements to be introduced for the control of concentrations should … respect the principle of non-discrimination between the public and the private sectors [and therefore, i]n the public sector, calculation of the turnover of an undertaking concerned in a concentration needs … to take account of undertakings making up an economic unit with an independent power of decision, irrespective of the way in which their capital is held or of the rules of administrative supervision applicable to them’. With regard to that recital, the applicant claims that according to the decisional practice of the Commission, State-owned companies which are linked merely because their shares are held by the same holding company are generally not regarded as forming an economic unit, because the holding company does not actually exercise a decisive influence. The applicant submits that it is difficult to understand how the Commission came to a contrary conclusion in the present case in finding, without adducing any conclusive evidence, that HSE exercised decisive influence over its subsidiary TDR.

44      According to the applicant, that conclusion is even less justified since the applicant and its subsidiary TDR never shared any single economic aim. In Case T‑11/89 Shell v Commission ([1992] ECR II‑757), the Court required such an aim in order to find the existence of a single economic undertaking. The applicant submits that such an economic aim is normally defined by the parent company and must be followed by the subsidiary. In the present case, the only economic aim shared by the applicant and its subsidiary was the political objective of the Republic of Slovenia to privatise TDR as quickly as possible. The latter, in the meantime, was only ‘parked’ with the applicant, until the opportunity to privatise it occurred. Besides that objective, the two companies had very little in common. The applicant is a holding company wholly owned by the Slovenian State which brings together companies in the energy sector, mainly power plants, whereas TDR is purely a production company, focused on the production of calcium carbide and other substances. The applicant is active in the strictly regulated energy sector, whereas TDR is active in the metal production sector, which is in decline and has very little in common with the energy sector. It follows, according to the applicant, that the two companies did not and could not share a single economic aim or a joint business strategy.

45      The applicant puts forward, as evidence of the absence of any decisive influence on its part over TDR, the model for the preparation of business plans of companies in the HSE group for 2006. That model is adapted only to the production and sale of electricity, and not to the sale of goods, such as calcium carbide, marketed by TDR. Moreover, it indicates that TDR was required to prepare its own business plan.

46      The applicant’s arguments in that respect are not sufficient to show that the Commission’s conclusion concerning the existence of an economic unit is incorrect.

47      As the Commission rightly points out, how or why the applicant acquired its shareholding in TDR is, in that respect, irrelevant. The applicant’s argument, summarised in paragraph 43 above, concerning the Commission’s decisional practice in cases of concentrations involving public companies is also irrelevant.

48      Neither the history of the applicant’s acquisition of its shareholding in TDR nor even the criteria used by the Commission in its decisional practice in order to determine whether two public companies form part of the same economic unit are of any importance in the present case. That is the case a fortiori since nothing in the applicant’s argument shows that the concept of economic unity, as defined in the case-law cited in paragraphs 11 to 15 above, does not apply to commercial companies which are owned, directly or indirectly, by the State.

49      What is relevant is the question whether, following the acquisition of a majority interest in TDR, the applicant, during the infringement period, exercised a decisive influence over its subsidiary, with the result that they could be considered as constituting, during that period, an economic unit.

50      Contrary to the applicant’s submission, neither its alleged intention to sell its shareholding in TDR to another investor nor the fact that the latter was active in an entirely different commercial sector from its own precludes the exercise of such decisive influence.

51      First, the exercise of a decisive influence by a parent company over its subsidiary is not incompatible with a decision by the former to dispose of its shareholding in the latter at some point in the future. Certainly, once that shareholding has been disposed of, the decisive influence of the parent company over its former subsidiary will come to an end. However, until that disposal takes place, nothing prevents the parent company from exercising a decisive influence over its subsidiary.

52      It must also be pointed out in that respect that it can be seen from the fifth indent of recital 264 to the contested decision, and, moreover, has been confirmed by the applicant, that the applicant’s supervisory board granted its prior authorisation for the sale of TDR. That shows, as the Commission submits in its written pleadings, that the decision to sell the applicant’s shareholding in TDR was not the exclusive result of a political decision by the Slovenian Government, without any possibility for the applicant to exercise influence in that regard. The fact that, in authorising the sale of its shareholding in TDR, the applicant’s supervisory board sought to ensure that that transaction was in the interest of the applicant, does not call those considerations into question.

53      Secondly, as regards the argument concerning the divergence in the respective sectors of activity of the applicant and its subsidiary, it must be pointed out that in Case T‑112/05 Akzo Nobel and Others v Commission, cited in paragraph 31 above (paragraphs 63 and 64), which was upheld on appeal in Case C‑97/08 Akzo Nobel and Others v Commission, cited in paragraph 13 above, the General Court expressly rejected the argument that the decisive influence capable of justifying the imputation to the parent company of liability for the infringement committed by its subsidiary concerns only the commercial policy stricto sensu of that subsidiary, such as, for example, distribution and pricing policy. The General Court held that, on the contrary, it is for the parent company to put before the Court any evidence relating to the economic, organisational and legal links between its subsidiary and itself which in its view are apt to demonstrate that they do not constitute a single economic entity. Furthermore, it held that when making its assessment the Court must take into account all the evidence adduced by the parties, the nature and importance of which may vary according to the specific features of each case (Case T‑112/05 Akzo Nobel and Others v Commission, cited in paragraph 31 above, paragraph 65).

54      It can be inferred from those considerations that the mere fact that the parent company and its subsidiary are active in different economic sectors, or even that the personnel of the parent company have no expertise in the specific commercial sector in which the subsidiary is active does not preclude the exercise of a decisive influence by the parent company over its subsidiary, even if the latter enjoyed a certain level of autonomy in the management of its business (see, to that effect, General Química and Others v Commission, cited in paragraph 11 above, paragraphs 104 and 109, and Case C‑508/11 P ENI v Commission [2013] ECR I‑0000, paragraph 64).

55      The applicant’s argument concerning Shell v Commission, cited in paragraph 44 above, must also fail. In that respect, it must be noted at the outset that, in response to a question at the hearing, the applicant stated that it could not specify the paragraph of that judgment to which it was referring. It nevertheless follows from a reading of the judgment in question that an expression similar to the expression ‘single economic aim’ invoked by the applicant is used in paragraph 311. The Court indicated in that paragraph that Article 81(1) EC was aimed at ‘economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision’. That is settled case-law which the Court has repeated on many occasions, inter alia in Case T‑112/05 Akzo Nobel and Others v Commission, cited in paragraph 31 above (paragraph 57).

56      It can be seen from the reasoning of the latter judgment, noted in paragraph 53 above, that, contrary to what the applicant appears to believe, the expression in question cannot be understood as meaning that there must be an affinity between the business sectors in which the various legal persons making up an economic unit are active, nor even that the existence of a single economic aim is incompatible with the existence of an activity in several different, entirely unrelated, sectors. Accordingly, that argument must be rejected.

57      It must also be noted, in that context, that the applicant itself claimed, in its reply to the statement of objections, that the price of electricity was of particular importance for the production of the goods marketed by TDR and that, accordingly, undertakings active in that production sector were particularly affected by changes to that price. In the ninth indent of recital 264 to the contested decision, the Commission indicated that, during the period when it was controlled by HSE, TDR had benefited from cheaper electricity prices. The applicant has stated, in that respect, that it was the same price as that offered to all of its large clients and that TDR continued to enjoy those prices even after its sale to a private investor.

58      Irrespective of whether or not TDR enjoyed electricity prices as favourable as those offered to the applicant’s other large clients, the particular importance of electricity prices to TDR’s business activity constitutes an explanation, at least in part, for the applicant’s acquisition of a majority interest in its shareholding. In other words, that element constitutes a link between the respective sectors of activity of TDR and the applicant. It must be noted, in that respect, that according to the applicant’s own claims, the previous proprietor of the shareholding in TDR which was subsequently transferred to the applicant, namely Eles, was also an undertaking active in in the energy production and distribution sector.

59      The applicant’s argument that, in essence, in respect of TDR it played the role of a holding company, with which TDR had merely been ‘parked’ while awaiting its privatisation, must also be rejected. It suffices to note in that respect that, in accordance with the case-law, the mere fact that a legal person constitutes a holding company managing the companies whose capital it holds does not preclude its liability for an infringement of the competition rules committed by one of those companies, if there is evidence proving that the holding company and the infringing company are part of the same economic unit (General Química and Others v Commission, cited in paragraph 11 above, paragraph 86).

60      The applicant’s argument that the business-plan model it had prepared for the companies in its group was not appropriate for TDR, with the result that it allowed TDR to prepare its own business plan, must also be rejected. The fact that the applicant specified that, like the other companies of the group, TDR should prepare a business plan, albeit in accordance with a model of its own conception, is rather an indication of the exercise of an influence over the latter. It is a clear instruction addressed by the applicant to TDR, which contradicts the argument that the latter was entirely autonomous in the management of its business.

61      Since the arguments relating to the circumstances of the applicant’s acquisition of a shareholding in TDR have proved to be insufficient to call into question the finding that it exercised a decisive influence over the latter, it is appropriate to continue the examination of the present plea in law by analysing the applicant’s arguments relating to the inclusion of TDR’s turnover in the applicant’s consolidated accounts.

–       The inclusion of TDR’s turnover in the applicant’s consolidated accounts

62      The applicant claims that the inclusion of TDR’s turnover in its own consolidated accounts, invoked by the Commission in the third indent of recital 264 to the contested decision, was the result, not of its own decision, but of an obligation under the relevant Slovenian legislation. According to the applicant, that consolidation, done to the minimal permissible extent so as still to comply with the applicable legal provisions, cannot constitute evidence that it exercised a decisive influence over TDR.

63      It must be recalled, in that respect, that the consolidation of TDR’s turnover in the accounts of the applicant’s group is mentioned by the Commission among other evidence intended to show that the applicant itself considered TDR as forming part of its group of undertakings. It has already been pointed out in paragraph 36 above that the fact that a parent company presents its subsidiaries and itself towards the outside world as forming part of the same group of undertakings constitutes relevant indicia of the existence of an economic unity between them, indicia which the Commission rightly pointed out in the contested decision.

64      The applicant’s argument that it is common business practice for companies to refer to their subsidiaries as belonging to their group, which it is appropriate to analyse in the same context, cannot lead to a different conclusion. It is true that, as the applicant notes, the mere use of the term ‘group’ does not necessarily imply the existence of an economic unit, for the purpose of the case-law on the imputation to a parent company of the unlawful conduct of a subsidiary. However, it is doubtful to say the least that a company would choose to identify itself with a subsidiary over which it exercises no control. In any event, it must be noted that, in the present case, the Commission did not rely exclusively on the fact that the applicant publicly presented TDR as forming part of its own group of undertakings, including by the consolidation of TDR’s turnover in the accounts of the group. In that regard, the Commission also relied on other indicia, concerning the personal and organisational links between the applicant and TDR.

65      Nor can a different inference be drawn from the mere fact that the consolidation of TDR’s turnover in the accounts of the applicant’s group was the result of a legal obligation. It appears that the applicant did not merely comply with that legal obligation, but also presented TDR, publicly and towards the outside world, as forming part of its group of companies.

66      In those circumstances, it is necessary to examine the applicant’s arguments concerning its rights as a shareholder of TDR and the powers of the various bodies of the latter.

–       The applicant’s rights as a shareholder of TDR and the powers of the various bodies of the latter

67      The applicant sets out in detail the Slovenian legislation applicable to commercial companies such as TDR. According to the applicant, it is a commercial company with a two-tier management system, in which the powers of management and supervision are split between two distinct bodies.

68      The applicant submits that the most important body of such a company is the management board, which is responsible for the company’s management. It has the power to decide on all issues regarding the company, with the exception of those which are reserved for the supervisory board or for the shareholders’ general meeting. The persons responsible for managing the company have the duty to do so with diligence and in accordance with the company’s interests. They cannot be forced by the shareholders to conduct any business which would not be in the company’s interests. Thus, the managing director of a company such as TDR may be recalled only for a valid reason. That rule is intended to ensure the independence of the managing director with regard to the shareholders of the company. The managing director acts on his own responsibility and in consideration of the company’s best interests.

69      As regards the supervisory board, the applicant claims that it is responsible for monitoring the company’s conduct and actions. It is also authorised to examine and to verify the books and documents of the company, its cash box, stored securities, stocks of goods and other property. Moreover, the statutes of TDR provide that the supervisory board appoints and recalls the managing director, calls the shareholders’ meeting, reviews and checks documentation of TDR, grants consent to the managing director for the conduct of certain types of business, decides on loans to the managing director and other managers of the company, requests and reviews various reports on the business performance of TDR, reviews the composition of the annual report and the proposal for the use of distributable profit and confirms the annual report, with the possibility of commenting thereon. According to the applicant, the ‘collaboration’ to which the president of TDR’s supervisory board referred in his statement cited in the sixth indent of recital 264 to the contested decision concerns the exercise of those powers of the supervisory board. The applicable Slovenian legislation expressly provides that the management of a company such as TDR cannot be transferred to the supervisory board and, accordingly, the latter does not have the authority to manage the daily business operations of the company.

70      The applicant continues by noting that it was the majority shareholder of TDR and therefore had the right to appoint two members of the supervisory board, which it did. However, it did not have the right to appoint directly the management board of TDR, which had sole responsibility for the business conduct of that company. That power lay with the supervisory board. To make such an appointment, the supervisory board would first have to recall, for a valid reason, the managing director in office. The applicant claims that if it had intended to exercise a decisive influence over the activities of TDR, it would have appointed a managing director linked to the applicant. It did not do so and the managing director in office at the time of the applicant’s acquisition of a majority shareholding in TDR continued to carry out his duties until his resignation, of his own accord, on 17 November 2004. Following that resignation, the supervisory board appointed an interim managing director and launched a call for applications in order to select the new managing director. That new managing director was chosen from the candidates who had expressed an interest in the post, and had no previous link to HSE. Moreover, he continued in the post even after the sale, to a private investor, of HSE’s shareholding in TDR.

71      The applicant therefore claims that its influence over TDR was limited to its voting rights in the general meeting and its right to supervise the business of TDR through the supervisory board. However, although it influenced the election of two of the three members of that body, those two members cannot be regarded as mere representatives of the applicant, since, after their election, they were primarily obliged to safeguard the interests of TDR. According to the applicant, the Commission has not produced any evidence that those members attempted to bring the business of TDR in line with the commercial policy or goals of the applicant, or that the applicant ever gave them any instructions as to how they should carry out their duties as members of TDR’s supervisory board.

72      The applicant adds that, as a majority shareholder of TDR, it could exercise only limited influence over the latter’s business, since some of the most important decisions could be adopted only by a three-quarters majority of all shares. Furthermore, it never attempted to alter the statutes of TDR in order to limit the powers of the managing director and acquire indirect control over that company. It is therefore of the view that those factors, taken together, demonstrate that it did not constitute an economic unit with TDR, or regard itself as forming part of such a unit.

73      The applicant’s arguments in this respect are also incapable of calling into question the conclusion in the contested decision that the applicant and TDR constituted an economic unit during the infringement period.

74      First of all, despite the applicant’s detailed claims regarding the respective powers of the management and of the supervisory board of TDR, the fact remains that, immediately after acquiring a majority shareholding in TDR, the applicant, by its own admission, made use of its powers as a shareholder to appoint the majority, that is to say, two out of three, of the members of the supervisory board, which provided it with effective control over that body. It is difficult to imagine that the applicant would have made those appointments if, as it claims, it did not intend to exercise a decisive influence over the conduct of TDR.

75      That finding is not called into question by the applicant’s argument that the members of TDR’s supervisory board were obliged to protect the interests of that company. In the absence of arguments and evidence to the contrary, TDR’s integration in an economic unit formed with the applicant cannot necessarily be regarded as being contrary to TDR’s interests. Accordingly, there are no grounds for concluding that, by liaising between TDR and the applicant, the persons appointed by the latter to the former’s supervisory board acted against the interests of TDR and thus breached their obligations arising from the applicable Slovenian legislation.

76      Moreover, it must be pointed out that, if the argument in question is to be understood as meaning that the members of TDR’s supervisory board were required to act in total independence from the applicant, it is contradicted by the latter’s behaviour and, accordingly, cannot succeed. As has already been pointed out, once it had acquired a majority shareholding in TDR, the applicant ensured that the supervisory board of that company would be dominated by persons of the applicant’s choosing. That approach would not have made sense if the applicant had intended that the supervisory board be composed of persons entirely independent from the applicant.

77      Moreover, it should be noted that the applicant affirms that the members which it appointed to TDR’s supervisory board could not be considered ‘solely as [its] representatives’, thereby implicitly admitting that they also acted in that capacity.

78      As regards the issue of the powers of the supervisory board, it is clear from the applicant’s own explanations that, although the day-to-day management of a company such as TDR is the responsibility, primarily, of its managing director and of the other members of its management, the powers of the supervisory board are sufficient for it to exercise a decisive influence over that company’s conduct.

79      In that respect, the applicant acknowledges that the statutes of TDR, in the version in force in 2001, stipulate that the managing director must obtain the prior consent of the supervisory board for a whole range of acts, such as concluding short-term loans of an amount greater than the equivalent of approximately EUR 50 000, the grant of long-term loans, the grant and acquisition of guarantees or securities above that amount and business transactions in relation to real estate or shares in other companies. It is also apparent from the applicant’s explanations that, during the amendment of those statutes in 2005, the restrictions imposed on the managing director were somewhat reduced, though not completely eliminated. Specifically, according to the applicant’s claims, the statutes of TDR, in the amended version of 2005, provided that the managing director had to obtain the prior consent of the supervisory board in order to conclude short-term loans of amounts greater than the equivalent of approximately EUR 334 000, long-term loans or loans secured by a mortgage, and to sell TDR’s real property. Even if the restrictions thus imposed on the managing director of TDR were, as the applicant claims, less significant than those applicable in the case of other companies in the applicant’s group, they show that the managing director of TDR was in no way fully autonomous in the management of that company and that the tasks of the supervisory board were not limited to mere verifications.

80      Moreover, as noted in paragraph 54 above, a certain amount of autonomy on the part of the subsidiary, in particular in the management of its commercial policy stricto sensu, is not incompatible with that subsidiary forming part of the same economic unit as its parent company. Furthermore, as can be seen from the case-law cited in paragraph 53 above, in order to find the existence of an economic unity between the parent company and its subsidiary, it is not necessary that the former intervene decisively in the latter’s day-to-day management and commercial policy stricto sensu. Accordingly, even if the relevant Slovenian legislation did not allow TDR’s supervisory board to exercise a direct influence over issues relating to those areas, which come within the exclusive competence of the management of that company, that is not sufficient to preclude the exercise of a decisive influence, within the meaning of the case-law, by the applicant over its subsidiary. As is clear from Akzo Nobel and Others v Commission, cited in paragraph 31 above (paragraph 83), the parent company’s influence over the subsidiary’s strategy may suffice in order to justify the conclusion that they constitute a single economic entity (see also, to that effect, judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others v Commission, not published in the ECR, paragraph 102).

81      As regards the argument that TDR’s supervisory board could not, in accordance with the applicable Slovenian legislation, issue binding instructions to the management of that company, it must be pointed out that, although the power to issue such instructions to the management of a commercial company may indeed constitute a factor indicating the existence of a decisive influence over the behaviour of that company, it does not follow, conversely, that the absence of such a power precludes the exercise of such an influence.

82      That is particularly so in the present case, since it was for TDR’s supervisory board, dominated by persons appointed by the applicant, to choose the managing director of that company and, if necessary, to replace him. In that respect, it must be pointed out that the dismissal of a member of the management of a company such as TDR is not as difficult as the applicant seems to wish to make it out to be. As the Commission rightly points out, it is clear from the Slovenian legislation, specifically from the fourth indent of Article 268(2) of the zakon o gospodarskih družbah (Law on companies), that the members of the management of such companies may be removed from their post for, inter alia, ‘other financial and commercial motives (significant changes in the ownership structure, reorganisation[, etc.])’. Furthermore, the applicant itself acknowledges that it was the supervisory board of TDR which, after the resignation of TDR’s managing director, chose his successor, having recourse, in that respect, to a public call for applications procedure.

83      Neither the fact that TDR’s existing managing director was maintained in his post after the applicant’s acquisition of a majority shareholding in TDR, nor the fact that, when that director resigned, he was replaced by a person with no previous links to the applicant, preclude the exercise of a decisive influence by the applicant over its subsidiary. It must not be considered that the exercise by the parent company of a decisive influence over its subsidiary necessarily entails the appointment, to the subsidiary’s bodies, of persons linked to the parent company who merely execute the instructions issued to them by that company.

84      Nor is the existence of an economic unit composed of the parent company and its subsidiary incompatible with a situation where the subsidiary’s management submits proposals to the parent company or to its representatives, which the parent company merely approves. In such a situation, the fact that the parent company or its representatives must approve those proposals and have, therefore, the right to refuse to do so and to reject those proposals is, in fact, evidence of a decisive influence.

85      Taking those considerations into account also, it must be pointed out that the fact that the parent company maintains in their posts the persons who managed the company prior to its acquisition and, if necessary, replaces them with newly recruited persons, is equally incapable of proving the absence of a decisive influence by the parent company over the behaviour of that subsidiary on the market.

86      The replacement of the former directors of that subsidiary is necessary only when those directors are not willing to follow the commercial policy advocated by the parent company. It cannot be presumed that such will always be the case. It is entirely conceivable that the directors of a company would be willing to cooperate with that company’s new owner and that the latter would wish to keep them in their posts in order to avoid any disturbance to the normal business activity of the company which it has just acquired. Nor does the fact that the potential new directors of the subsidiary are recruited via a call for applications procedure prove the absence of a decisive influence by the parent company, since it is precisely the latter or its representatives which choose the persons to be recruited from the candidates which have expressed an interest in the post.

87      In the light of the foregoing considerations, it must be concluded that the applicant’s line of argument relating to its rights as a shareholder of TDR and to the powers of the various bodies of that company is also incapable of calling into question the conclusion that the applicant and its subsidiary constituted, during the infringement period, a single economic unit. It must be recalled, in that respect, that the Commission, in arriving at that conclusion, did not rely solely on the composition of TDR’s supervisory board, but rather, as is clear from the seventh and eighth indents of recital 264 to the contested decision, also took into consideration the fact that the body in question and the applicant itself received periodic detailed reports on TDR’s business. Accordingly, it is appropriate to examine the arguments put forward by the applicant to challenge the latter finding.

–       The reports and information communicated to TDR’s supervisory board and to the applicant

88      The applicant claims that, in submitting reports to the supervisory board, TDR’s management merely complied with its obligations under the applicable Slovenian legislation and that the reports thus submitted were simply in compliance with that legislation, without going beyond the requirements thereof.

89      As regards, the ‘more detailed reporting’ referred to in the eighth indent of recital 264 to the contested decision, the applicant states that it constitutes ‘a single analysis of the market and of TDR’s competitors from 2003, revised in 2005’. According to the applicant, that analysis presents an overview of TDR’s competitors, based primarily on the communications between TDR and its business partners, suppliers and customers, as well as on statistical data and publicly available data. The purpose of that analysis was to present the situation of the industry of calcium carbide, mass ferroalloys and complex alloys, at the time of its drafting and of its revision.

90      According to the applicant, that analysis was examined by TDR’s supervisory board, which decided that the management of TDR should continue to search for market niches suited to TDR’s potential. The applicant is of the view that the supervisory board’s conclusion, as set forth in the minutes of the relevant meeting of that body, clearly demonstrates that the supervisory board considered that the responsibility for determining on which markets TDR should be present lay with the management of that company. Besides that analysis, the information communicated to the supervisory body and to the applicant itself consisted in ‘very limited mandatory reporting according to the law’.

91      Those arguments are not convincing.

92      It must be pointed out in that respect that, in their written submissions, the parties disagree as to whether the reports communicated by the management of TDR to the supervisory board constituted merely the fulfilment of an obligation under the relevant Slovenian legislation, as the applicant claims, or went beyond that obligation, as the Commission contends. However, it is not necessary to adopt a position on that issue, which is irrelevant to the outcome of the dispute.

93      What is relevant is the fact that, by those reports, TDR’s supervisory board, the majority of whose members were appointed by the applicant, kept itself regularly informed of developments in that company’s business. As the Commission rightly points out, it received detailed information about price changes of raw materials, planned price changes per product and the volumes supplied to other suppliers. Taking into account also the powers of TDR’s supervisory board and the considerations set forth in paragraphs 78 to 86 above, that information constitutes an additional indication of the existence of an economic unit composed of the applicant and its subsidiary. Since the applicant had perfect knowledge of TDR’s business activities, and since the supervisory board and, indirectly, the applicant – which had appointed the majority of the members of that board – could at any time intervene and impose its view of the commercial policy to be followed, if necessary by replacing members of TDR’s management or by evoking that possibility, it must be concluded that TDR’s behaviour was decisively influenced by the applicant.

94      Those considerations are supported by a reading of the applicant’s reply to the statement of objections. The applicant stated in that reply that ‘[t]he members of the supervisory board monitored the operations of the company by means of regular reports thereon, with the general director of the company providing specific clarifications of various issues’, and that ‘on several occasions, supervisory board members pointed out deficiencies in the reports and requested additional clarifications’. Although that document distinguishes that ‘monitoring’ from ‘interference by supervisory board members in the conduct of the company’s business’, which it claims never occurred, it is clear from those statements that the members of TDR’s management were aware that they were subject to the permanent supervision of the supervisory board, composed primarily of representatives of the applicant, and therefore, to the latter’s supervision. That corresponds to the very definition of decisive influence by a parent company over its subsidiary, demonstrating that the two companies form an economic unit.

95      As the Commission notes, the applicant also stated, in the same document, the following:

‘It should also be noted here that TDR operated at a loss for most of the period in which [HSE] was making capital investments in it. The requests made by supervisory board members for clarifications relating to TDR operations therefore mostly related to TDR’s position on the markets for individual products, and primarily to prices in connection with costs and similar issues, all in order to fulfil the function of ensuring the success of TDR’s business operations or of ensuring that losses were kept to a minimum.’

96      That statement also confirms the considerations set out in paragraph 94 above. The fact, invoked by the applicant, that TDR was at that time a company in financial difficulty and that, by their interventions, the members of the supervisory board and the applicant sought to ensure its financial survival is irrelevant. Whatever the reasons for or aims of the supervisory board’s interventions, it is nevertheless the case that they constitute an indication of the exercise of a decisive influence.

97      Moreover, the fact that the applicant itself received detailed reports from TDR, as mentioned in the eighth indent of recital 264 to the contested decision, constitutes additional evidence pointing to the existence of an economic unit composed of the applicant and its subsidiary. In that respect, it must be noted that two of the documents cited in footnote 578 to the contested decision to support that claim were added to the file by the Commission. One is a document bearing the reference 205/65-94, which is referred to in footnote 578 and, according to the applicant, is identical to the document bearing the reference 203/50-79, referred to in the same footnote, and the other is a document bearing the reference 205/97‑108.

98      The documents in question are those relating to the applicant’s explanations summarised in paragraph 89 above. They call into question neither the finding set out in the eighth indent of recital 264 to the contested decision, nor the considerations set out in paragraphs 93 to 97 above. Nor are those considerations called into question by the applicant’s argument that the alleged instructions given by the supervisory board to TDR’s management were ‘general and policy-neutral’.

99      It is not the content of any instructions that TDR’s supervisory board – primarily controlled by the applicant’s representatives – may have addressed to TDR’s management that is relevant, but rather the fact that the supervisory board and the applicant had detailed knowledge of TDR’s business operations and, following discussion, made comments in that respect, regardless of whether those comments should be qualified as instructions. Such a situation is sufficient (see also paragraph 93 above) to show the exercise of control and, consequently, of a decisive influence by the applicant, through TDR’s supervisory board, over TDR’s behaviour on the market.

100    It must also be noted, given the applicant’s direct and indirect responses to that issue, that it is irrelevant whether or not TDR’s supervisory board, or even the applicant itself, knew of TDR’s unlawful conduct. As the Commission pointed out in recital 266 to the contested decision, which refers to recital 224 of the same decision, the applicant was not held responsible for the infringement at issue on the ground that it had participated in that infringement through the members of its management or its personnel, but on the ground that it formed part of the same economic unit as TDR, whose management and personnel had participated in the infringement. The imputation of a subsidiary’s unlawful conduct to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred. On the other hand, the organisational, economic and legal links between the parent company and its subsidiary may establish that the parent exercises an influence over the subsidiary’s strategy and therefore that they can be viewed as a single economic entity (see, to that effect, Case T‑112/05 Akzo Nobel and Others v Commission, cited in paragraph 31 above, paragraphs 58 and 83).

101    In the light of all of the foregoing considerations, the applicant’s line of argument concerning the reports and the information communicated to it by TDR and TDR’s supervisory board must also be rejected.

–       Conclusion on the first plea in law

102    It follows from all of the foregoing considerations that, in the contested decision, the Commission put forward a series of factual indications, supported by relevant evidence, intended to demonstrate that, during the infringement period, the applicant exercised a decisive influence over its subsidiary TDR and formed, with the latter, a single economic unit. For the reasons set out in detail above, the applicant has not been able to call that conclusion into question by the arguments and information which it put forward before the Court. Accordingly, the Commission was right to impute to the applicant liability for the infringement committed by its subsidiary TDR and, therefore, the first plea in law must be rejected as unfounded.

 The second plea in law, alleging infringement of the presumption of innocence

103    The applicant invokes the principle of the presumption of innocence, enshrined in Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, and which arises also from Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), according to which the Commission may impose fines on undertakings having infringed the competition rules laid down by European Union law, if they acted intentionally or negligently. According to the applicant, it follows from Case T‑43/92 Dunlop Slazenger v Commission [1994] (ECR II‑441, paragraph 142), and Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] (ECR II‑1739, paragraph 236), that the perpetrator of an infringement acts negligently where it must have known that its conduct would result in a restriction of competition.

104    The applicant is of the view that, in the present case, the Commission has not proven, as regards the applicant, either of the two forms of culpability defined in paragraph 103 above. It states that it was not aware of the infringement committed by TDR and could not have anticipated it. Moreover, the Commission has not accused it of deliberately infringing Article 81 EC.

105    The applicant also claims that it did not negligently ignore TDR’s involvement in anti-competitive conduct and briefly refers, in that respect, to its line of argument put forward in the context of the first plea in law, according to which it became a shareholder of TDR involuntarily. Since it had not, prior to that time, engaged in the markets concerned by the infringement, it would have been virtually impossible for it to become involved in the operative business of its subsidiary or to detect any malpractice on the part of the latter. It follows, according to the applicant, that given the absence of evidence proving its guilt, the Commission was not authorised to impose a fine on the applicant under Article 23(2) of Regulation No 1/2003.

106    That line of argument is based on a misunderstanding of the contested decision and must be rejected.

107    In accordance with settled case-law, in view of the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence, resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and from Article 48(1) of the Charter of Fundamental Rights of the European Union, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement (see Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 61 and 62 and the case-law cited).

108    In particular, it is clear from the settled case-law of the Court of Justice that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence. However, even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (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, paragraphs 78 and 79, and Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 29).

109    That noted, it must also be pointed out that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine (Dresdner Bank and Others v Commission, cited in paragraph 107 above, paragraph 60, and judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 69).

110    In the present case, both in the statement of objections that it sent to the applicant and in the contested decision (recitals 43 to 135), the Commission set forth in detail the unlawful conduct of which, inter alia, certain members of the staff or management of TDR and accordingly TDR itself were, in the Commission’s view, guilty. It also made reference, in those two documents, to the various evidence on which its assertions were based. Moreover, it can be seen from recital 51 to the contested decision that all the addressees of the contested decision, including the applicant, have had access to the file of the procedure before the Commission, which includes the evidence of the infringement relied on by the Commission in support of its assertions. The applicant has neither contested, before the Court, the abovementioned observations set out in recital 51, nor made any complaint in that regard.

111    In addition, it is clear from a reading of the applicant’s reply to the statement of objections, a copy of which was added to the case file by the Commission, that the applicant did not in any way contest, during the administrative procedure, the existence of the unlawful conduct imputed to TDR. It merely claimed that, during the infringement period, it did not form an economic unit with the latter. Nor has the applicant contested, before the Court, the existence of the unlawful conduct of TDR as found in the contested decision.

112    It follows that, as regards the finding of the unlawful conduct referred to in the contested decision on the part of TDR, it cannot be held that the Commission failed to respect the presumption or the requirements set out in the case-law cited in paragraphs 103 and 105 above.

113    As regards the imputation of liability for that unlawful conduct to the applicant, it must be noted that, as already pointed out (see paragraph 100 above), that imputation does not arise from the implication in the infringement of members of the staff or management of the applicant itself, but rather the fact that, during the infringement period, it formed an economic unit with TDR. For that reason, the applicant’s arguments, summarised in paragraphs 104 and 105 above, must be rejected as irrelevant.

114    As regards the applicant, the issue was not whether it had acted intentionally or negligently, since it was not accused, in either the statement of objections or the contested decision, of having itself – that it to say, through members of its own staff or management – done anything at all. Rather, it was found in the contested decision that, during the infringement period, the applicant had formed part of the same economic unit as TDR. As can be seen from the case-law cited in paragraphs 12 to 15 above, that finding is sufficient to justify the imputation to the applicant of liability for its subsidiary’s unlawful conduct.

115    Furthermore, as regards the finding that the applicant and its subsidiary formed an economic unit, the Commission did not rely on any presumption, as has already been pointed out (see paragraphs 21 to 28 above), but rather invoked, in the contested decision, the facts and evidence which supported that conclusion. That conclusion has moreover been contested by the applicant in the context of the first plea in law, which must, however, be rejected as unfounded for the reasons indicated above. The Commission therefore acted correctly and did not infringe the principle of the presumption of innocence in imputing liability for TDR’s unlawful conduct to the applicant.

116    It follows from all of the foregoing considerations that the second plea must be rejected as unfounded.

 The third plea in law, alleging the erroneous inclusion of a ‘deterrence factor’ in the fine imposed on the applicant

117    The applicant submits in the application that the Commission increased the basic amount of the fine imposed on it by 17% ‘for deterrence purposes’. It takes the view that that increase was not justified in so far as it was not itself directly involved in the infringement at issue and the Commission decided not to impose a fine on the direct perpetrator of that infringement, namely TDR.

118    This plea in law is set out very briefly in the application, and the Commission has expressed doubts as to whether it is in conformity with requirements laid down in Article 44(1)(c) of the Rules of Procedure of the Court. That provision provides that the application must, inter alia, contain a summary of the pleas in law relied on. That summary – albeit concise – must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if an action or, more specifically, a plea in law is to be admissible – that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 36, and Case T‑308/05 Italy v Commission [2007] ECR II‑5089, paragraphs 71 and 72).

119    It must be found that, as it is set out in the application, the third plea in law, though brief, is sufficiently developed to be adjudicated on in accordance with the case-law referred to in paragraph 118 above.

120    It must be noted, in that respect, that the Commission determined the amount of the fine imposed on the applicant and on the other addressees of the contested decision by following the method described in its guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’). That method comprises two steps. First, the Commission determines a basic amount for each undertaking or association of undertakings on the basis of the value of the relevant undertaking’s sales of goods or of services to which the infringement directly or indirectly relates in the relevant geographic area. The basic amount is related to a proportion – set in the present case, in recital 301 to the contested decision, at 17% – of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. However, in accordance with point 25 of the Guidelines, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum, known as an ‘entry fee’, of between 15 and 25% of the value of sales in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. In the present case, the ‘entry fee’ was also set, in recital 306 to the contested decision, at 17% of the value of sales. Secondly, the Commission may adjust the basic amount of the fine set during the first step either upwards or downwards to take account of aggravating or mitigating circumstances. In the present case, no such increase or decrease was applied in respect of the applicant, with the result that the amount of the fine imposed on it in Article 2(i) of the contested decision is equivalent to the basic amount, as set out in recital 308 to the contested decision.

121    It is clear that the applicant’s line of argument, as summarised in paragraph 117 above and viewed in the context of the present case, concerns the inclusion of the entry fee in the amount of the fine imposed on it, which it confirmed at the hearing. In essence, the applicant claims that since it was not personally involved in the infringement, it was not necessary to pursue an objective of deterrence against it and to include, for that purpose, the entry fee in the amount of the fine imposed on it.

122    That line of argument is based on the same misunderstanding as the second plea in law and must, for that reason, be rejected.

123    It must be pointed out, as a preliminary, that if the line of argument put forward by the applicant in support of its third plea in law were well-founded, the entire amount of the fine imposed would be called into question, and not just the inclusion, in that amount, of the entry fee.

124    As the applicant itself notes, it is clear from the case-law of the Court of Justice that the power to impose fines granted to the Commission by Article 23(2) of Regulation No 1/2003 is intended to enable it to carry out the task of supervision conferred on it by European Union law. That task includes in particular suppressing illegal activities and preventing their reoccurrence (see Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 22 and the case-law cited).

125    Concerning more specifically the entry fee, its inclusion in the amount of the fine is intended, in the words of point 25 of the Guidelines, ‘to deter undertakings from even entering into … agreements’ such as those at issue in the present case. It is clear that, since the basic amount of the fine is calculated on the basis of the duration of the participation in the infringement, there is a risk that, in the event of infringements of a short duration, the basic amount may prove to be insufficient – a risk which the inclusion of the entry fee in the amount is intended to prevent.

126    If it were to be found that the applicant had not participated in the infringement at issue and that, consequently, no deterrent objective had to be pursued against it, there would be no justification for the imposition of a fine on the applicant, not just the inclusion of the entry fee in the amount of that fine.

127    Be that as it may, it can be seen from the considerations set out in the analysis of the second plea in law that the applicant must be considered as having participated in the infringement. As found in the examination of the first plea in law, TDR, at the time of the infringement at issue, formed part of the same economic unit as the applicant. Accordingly, the unlawful conduct of the former may be imputed to the latter, in such a way that it is deemed to have committed that infringement itself (see, to that effect, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 34; Case T‑69/04 Schunk et Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 74; and Case T‑405/06 ArcelorMittal Luxembourg and Others v Commission [2009] ECR II‑771, paragraph 146). The Commission therefore acted correctly, and in accordance with the case-law referred to in paragraph 124 above, in imposing on the applicant a fine which included the entry fee.

128    The applicant’s argument concerning the fact that no fine has been imposed on TDR must also be rejected. It is apparent from recital 286 to the contested decision, and footnote 597 to that recital, that the imposition of a fine on TDR would not have made any sense. TDR had been declared bankrupt prior to the adoption of the decision and it would have been impossible for the Commission to recover the amount of any fine imposed on it, since the period for the declaration of claims in the bankruptcy proceedings had expired approximately a year before the adoption of the contested decision. In other words, the Commission refrained from imposing a fine on TDR not because it was not necessary for deterrent purposes, but because, in any event, it would not have been able to recover the amount of that fine. It does not in any way follow that those circumstances apply in the applicant’s case.

129    In its reply, the applicant claims that the Commission applied the same percentage, namely 17%, in calculating the entry fee for all of the addressees of the contested decision and thereby breached the principles of proportionality and equal treatment. The applicant submits, in that respect, that the Commission did not take into consideration whether each of the legal entities concerned had participated directly or indirectly in the infringement and, accordingly, had disregarded ‘the individual level of guilt involved and the individual need for deterrence’ in respect of each addressee of the contested decision.

130    Without it being necessary to examine whether, for the purposes of Article 48(2) of the Rules of Procedure, that line of argument merely amplifies the line of argument put forward in the application, or raises a new plea in law – which would be inadmissible since it would not be based on matters of law or fact which have come to light in the course of the procedure – it must, in any event, be rejected.

131    It follows from the foregoing considerations (see paragraph 127 above) that the distinction, invoked by the applicant, between entities which participated directly and those which participated indirectly in an infringement, has no basis in the case-law. All of the addressees of the contested decision are, as has already been pointed out, regarded as having participated directly in the infringement, regardless of whether the natural persons involved in the infringement were members of the staff or the management of those addressees, or of their subsidiaries with which they formed an economic unit. It follows that neither the principles of equality of treatment or proportionality, nor any other rule or principle of European Union law requires a differentiation in respect of the entry fee, based on the alleged ‘direct’ or ‘indirect’ nature of the participation of each addressee of the contested decision.

132    Moreover, as the Court held in Case T‑352/09 Novácke chemické závody v Commission [2012] (ECR II‑0000, paragraph 58), the Commission may set the percentage of the value of sales referred to in point 25 of the Guidelines and taken into account in order to calculate the entry fee, as well as that referred to in point 21 of the Guidelines, at the same level for all the cartel participants. Setting the same percentage for all the cartel participants does not mean that the same entry fee has been determined for all the cartel participants. Since that fee is a percentage of the value of each cartel participant’s sales in relation to the infringement, it will be different for each participant, depending on the differences in the value of participants’ sales.

133    It follows from all of the foregoing considerations that the third plea in law is also unfounded and must be rejected.

 The fourth plea in law, alleging that the Commission failed to take into account mitigating circumstances relating to the applicant

134    In the fourth plea in law, the applicant claims that even if the contested decision is not unlawful in so far as it imputes to the applicant the infringement committed by TDR, it is defective as regards the amount of the fine, since the Commission did not take into account the mitigating circumstances relating to it. The applicant invokes, as mitigating circumstances which should have been taken into account, first, the fact that it committed the infringement as a result of negligence and, secondly, the fact that the anti-competitive conduct imputed to it had been encouraged by the Republic of Slovenia, which transferred to the applicant its shareholding in TDR. In its reply, the applicant adds that the Commission’s failure to take account of mitigating circumstances relating to the applicant constitutes an infringement of the principles of equal treatment and proportionality.

135    It must be noted that, according to settled case-law, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them, which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established. That conclusion follows logically from the principle that penalties must be appropriate to the offender and the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under the competition rules of European Union law (see Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraphs 277 and 278 and the case-law cited).

136    In accordance with those principles, the Guidelines provide, in point 29, for the basic amount of a fine to be adjusted on the basis of certain mitigating circumstances, which are specific to each undertaking concerned. Point 29 lays down, in particular, a non-exhaustive list of the mitigating circumstances that may be taken into account. In particular, in accordance with the second indent of point 29, the basic amount of the fine may be reduced where the undertaking concerned provides evidence that the infringement has been committed as a result of negligence. Moreover, the fifth indent of point 29 provides that the basic amount of the fine may be reduced where the anti-competitive conduct has been authorised or encouraged by public authorities or by legislation, without prejudice to any action that may be taken against the Member State concerned.

137    First, as regards the argument that a mitigating circumstance should have been taken into account in relation to the applicant because it committed the infringement as a result of negligence, the applicant claims, more specifically, that if merely negligent participation in unlawful conduct may constitute a mitigating circumstance for a company which has itself committed the infringement, negligence by a parent company in detecting the unlawful conduct of its subsidiary must, a fortiori, be taken into account in the same way. Thus, in the event that it is found that it formed a single economic undertaking with TDR, the applicant claims that its failure to detect the unlawful conduct of its subsidiary was the result of negligence, which, moreover, according to the applicant, is amply demonstrated by the arguments and evidence put forward in its reply to the statement of objections.

138    That line of argument is based on the same misunderstanding of the content of the contested decision as that at the origin of the second and third pleas in law. It must therefore, like those two pleas in law, be rejected.

139    It must be noted, in that respect, that, as has already been pointed out (see paragraph 110 above), the Commission, in the contested decision, set forth in detail the factual indications which it had established in relation to, inter alia, TDR, and which showed the latter’s involvement in an infringement of the European Union competition rules. The Commission also referred, in the contested decision, to the various evidence on which it had relied in that regard. It must also be pointed out that the applicant did not contest, in its reply to the statement of objections or before the Court, its subsidiary’s involvement in the contested infringement and the circumstances established by the Commission in that respect.

140    It must also be recalled that, in accordance with settled case-law, for an infringement to be regarded as having been committed intentionally, and not as a result of negligence, it is not necessary for the undertaking concerned to have been aware that it was infringing the competition rules; it is sufficient that it could not have been unaware that its conduct had as its object the restriction of competition in the common market (see Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 41 and the case-law cited, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 205 and the case-law cited).

141    In view of the circumstances of the infringement at issue, as summarised in paragraph 1 above, it is obvious that the members of TDR’s personnel or management who participated on its behalf in various meetings organised in connection with the cartel, and who subsequently implemented the decisions taken at those meetings, could not have been unaware that their conduct had as its object the restriction of competition in the common market. That is in fact the direct and immediate consequence of market-sharing, quotas, customer-allocation and price-fixing among a number of participants on the same markets, all of which fall within the scope of the object of the infringement penalised by the contested decision (see, to that effect, Novácke chemické závody v Commission, cited in paragraph 132 above, paragraph 86). It follows that the Commission was correct in not finding, in the contested decision, that TDR had committed the infringement as a result of negligence, and it cannot be accused of erring in law in that regard.

142    As regards the applicant, as has already been pointed out, the infringement was not imputed to it in the contested decision on the ground that it had failed to detect the unlawful conduct of its subsidiary or, more generally, because it had failed to prevent its subsidiary from committing that infringement. It must again be noted that the infringement was imputed to the applicant because the Commission was of the view – correctly, as found in the examination of the first plea in law – that it formed an economic unit with TDR. As has been pointed out, in view of that finding, the applicant is regarded as having itself committed the infringement and cannot invoke a mitigating circumstance relating to infringements committed as a result of negligence, any more than it can do so in relation to its subsidiary TDR.

143    Secondly, the applicant’s argument that it should have had the benefit of a mitigating circumstance because the anti-competitive conduct at issue was authorised or encouraged by the Slovenian public authorities must also fail.

144    The applicant claims, in that regard, that its shareholding in TDR was imposed on it by a decision of the Slovenian Government, which, at the time, wholly owned the applicant as well as TDR. The latter was placed in the applicant’s portfolio of holdings by a government decision. The applicant is of the view that the mitigating circumstances set out in the fifth indent of point 29 of the Guidelines must apply a fortiori in the case of a wholly State-owned holding company which is ‘bequeathed’ a ‘smoking gun’, that is to say where it is forced to take on a shareholding in a company involved in an infringement of the competition rules.

145    That argument also arises from the same misunderstanding of the contested decision as that on which the first argument is based, examined in paragraphs 137 to 142 above.

146    As has been pointed out in the examination of the first plea in law, it is irrelevant how and why the applicant became the majority shareholder of TDR. It is doubtful whether, as regards a company, such as the applicant in the present case, it is possible to speak of a ‘will’ distinct and independent from that of its only shareholder, such as the Slovenian State in the present case, but even if the Slovenian State did indeed transfer the shareholding in TDR to the applicant against the latter’s will, it would be irrelevant. Irrespective of the reasons for the formation of the economic unit between the applicant and TDR, what is relevant for the purposes of the present case is that the unit in question continued to exist during the infringing period, which allows the conclusion that the applicant itself must be regarded as having committed the infringement, in the same way as its subsidiary.

147    Moreover, it must be pointed out that the circumstances alleged by the applicant in its line of argument summarised in paragraph 144 above are in no way comparable to those envisaged in the fifth indent of point 29 of the Guidelines. The mere fact that the Slovenian public authorities decided to transfer to the applicant the majority shareholding in TDR which had, until then, been owned by the Slovenian State does not mean that they authorised or encouraged the unlawful conduct of TDR. That is particularly so since that transfer, as the applicant itself affirms, was carried out in October 2002, whereas the unlawful conduct imputed to TDR began on 7 April 2004, as is clear from Article 1(g) of the contested decision. For that same reason, the applicant’s allegation that it was bequeathed a ‘smoking gun’ has no basis in fact.

148    Lastly, it must be observed that the applicant is of the view, as in the analysis of the second argument summarised in paragraph 142 above, that it has been held liable for the infringement because it did not detect the unlawful conduct of its subsidiary. It thus claims that, because it received a ‘smoking gun’ from the Slovenian State, it should be excused for failing to detect the anti-competitive conduct of its subsidiary. It suffices to note that that line of argument is based on an erroneous premise and must therefore be rejected, since the applicant has been held liable for the infringement because it is regarded as having itself participated in it.

149    In the light of all of the foregoing considerations, the fourth plea in law must be rejected.

150    Since all of the applicant’s pleas in law must be rejected, it is appropriate to reject the claims for annulment set out in the action. The application, made in the alternative, seeking the reduction of the fine imposed on the applicant, must also be rejected. In the exercise of its unlimited jurisdiction as regards the amount of the fine imposed on the applicant, the Court considers that the amount is in any event appropriate in view of the circumstances of the case as regards the gravity and duration of the infringement established by the Commission as well as the applicant’s economic resources and considers that nothing in the pleas and arguments put forward by the applicant leads to a different conclusion. Accordingly, the action must be dismissed in its entirety.

 Costs

151    Under the first indent of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action.

2.      Orders Holding Slovenske elektrarne d.o.o. (HSE) to bear its own costs and to pay those incurred by the European Commission.

Czúcz Labucka Gratsias

Delivered in open court in Luxembourg on 13 December 2013.

[Signatures]

Table of contents

Background to the dispute

Procedure and forms of order sought

Law

The first plea in law, claiming incorrect imputation to the applicant of TDR’s unlawful conduct

Review of the case-law relating to the imputation to the parent company of an infringement committed by its subsidiary

Contested decision

Analysis of the plea

– Introductory remarks

– The alleged unjustified application of the shareholding presumption

– Review of the case-law

– Analysis of the indicia of a decisive influence referred to in the contested decision

– The circumstances of the acquisition by the applicant of a shareholding in TDR

– The inclusion of TDR’s turnover in the applicant’s consolidated accounts

– The applicant’s rights as a shareholder of TDR and the powers of the various bodies of the latter

– The reports and information communicated to TDR’s supervisory board and to the applicant

– Conclusion on the first plea in law

The second plea in law, alleging infringement of the presumption of innocence

The third plea in law, alleging the erroneous inclusion of a ‘deterrence factor’ in the fine imposed on the applicant

The fourth plea in law, alleging that the Commission failed to take into account mitigating circumstances relating to the applicant

Costs

* Language of the case: English.