Case T-196/06

Edison SpA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Duty to state reasons)

Summary of the Judgment

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

(Art. 81 EC)

2.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision relating to several addresses – Need for an adequate statement of reasons, in particular with respect to the entity which must bear the liability for an infringement

(Arts 81 EC and 253 EC)

3.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Statement of reasons based on a matter not set out in the statement of objections – Not permissible

(Arts 81 EC and 253 EC)

4.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Correction of an error of reasoning during the proceedings before the Court – Not permissible

(Arts 81 EC and 253 EC)

5.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Taking into account information not contained in the decision upholding the liability of an undertaking in order to assess the legality of the reasoning for the decision – Not permissible

(Arts 81 EC and 253 EC)

1.      The conduct of a subsidiary may be imputed to the parent company in particular where, 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 between those two legal entities. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC.

In the specific case of a parent company holding 100% of the capital of a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, secondly, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as liable for the infringement at issue, 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.

In order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list.

(see paras 26-30)

2.      As regards the statement of reasons for a Commission decision applying Article 81 EC, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance.

Where a decision taken in application of Article 81 EC relates to several addressees and raises a problem of imputing liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, with regard to a parent company held liable for the offending behaviour of its subsidiary, such a decision must contain a detailed statement of reasons for imputing the infringement to that company.

In that context, where a parent company relies not only on the fact that it was a holding company managing its subsidiary as a straightforward financial investment, through an interposed holding company, but also pleads a body of special circumstances characterising the links between the companies concerned at the time of the infringement, and the matters submitted by that company are not mere contention, but contain detailed information on the functioning of the holding company, accompanied by statements by the directors of the companies concerned, exchanges of correspondence with third parties and a number of internal documents from the companies concerned, dating from the period of the infringement, the Commission is required to adopt a position on those arguments, examining whether, in the light of all the relevant factors relating to economic, organisational and legal links between the companies concerned, the parent company has demonstrated that its subsidiary acted independently, and to set out, if necessary, the reasons why it is of the view that the matters submitted by the parent company are inadequate to rebut the presumption at issue. The Commission’s duty to state reasons for its decision on this issue is clearly evident from the rebuttable nature of the presumption relating to the exercise of decisive influence by a parent company over its wholly owned subsidiary, in order to rebut which the parent company is required to produce evidence of all the economic, organisational and legal links between itself and its subsidiary.

(see paras 57-58, 71, 73, 75-77)

3.      A matter which was not set out in the statement of objections and on which an undertaking which is the addressee of a Commission decision finding an infringement of the competition rules has not had the chance to make known its view during the administrative procedure, cannot be regarded as admissible as evidence against that undertaking. Consequently, the Commission cannot rely on it for the purposes of the reasoning of the contested decision.

(see para. 83)

4.      The statement of reasons for a Commission decision applying Article 81 EC must in principle be notified to the party concerned at the same time as the decision adversely affecting it. A failure to state the reasons cannot thus be remedied by the fact that the party concerned learns the reasons for the decision during the proceedings. Therefore, the failure to state reasons at issue cannot be remedied in the course of the proceedings.

(see paras 89-90)

5.      In respect of actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules, the General Court, in the context of its unlimited jurisdiction, is competent to assess the appropriateness of the amount of the fines. Whereas that assessment may, in some circumstances, justify the taking into consideration of additional information, that consideration does not apply in the context of the review of whether the duty to state reasons has been observed in the decision finding the infringement, when the legality of that decision is being reviewed.

Accordingly, although the General Court may find that the Commission committed an infringement of the duty to state reasons in the context of the determination of fines imposed for infringements of Article 81(1) EC, while stating that, in so far as the measure or decision upheld by that institution is to be confirmed as to its substance, that infringement does not lead either to the annulment of the contested decision or to an alteration of the amount of the fines, that appraisal cannot be transposed concerning the review of the legality of a Commission decision inasmuch as the Commission upheld the liability of the undertaking concerned.

(see paras 91-93)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

16 June 2011 (*)

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Duty to state reasons)

In Case T‑196/06,

Edison SpA, established in Milan (Italy), represented by M. Siragusa, R. Casati, M. Beretta, P. Merlino and E. Bruti Liberati, lawyers,

applicant,

v

European Commission, represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, acting as Agents,

defendant,

ACTION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate), in so far as it concerns the applicant, and, in the alternative, an application for reduction of the amount of the fine,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of V. Vadapalas (Rapporteur), acting for the President, M. Prek, A. Dittrich, L. Truchot and K. O’Higgins, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 September 2010,

gives the following

Judgment

 Background to the dispute

1        The applicant, Edison SpA (formerly Montedison SpA), is a company incorporated under Italian law which, through Montecatini SpA, held, until 20 December 2000, 100% of the capital of Ausimont SpA, manufacturer of hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’).

2        Between December 2000 and May 2002, the applicant was the majority shareholder in Ausimont. In May 2002, Ausimont was sold to the Solvay SA group and became, from 1 January 2003, Solvay Solexis SpA.

3        In November 2002, Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

4        Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of certain undertakings.

5        On 26 January 2005, the Commission sent a statement of objections to the applicant and the other undertakings concerned.

6        After the hearing of the undertakings concerned, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals AB, Degussa, the applicant, FMC Corp., FMC Foret SA, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, Solvay, Solvay Solexis, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.

 The contested decision

7        The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product, PBS (recital 2 of the contested decision).

8        The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices.

9        The applicant was held to be ‘jointly and severally’ liable for the infringement with Solvay Solexis (recital 423 of the contested decision).

10      For the purpose of calculating the amount of the fines, the Commission applied the methods set out in its guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) ECSC (OJ 1998 C 9, p. 3).

11      The Commission determined the basic amount of the fines by reference to the gravity and duration of the infringement (recital 452 of the contested decision), which was described as very serious (recital 457 of the contested decision).

12      As part of a differentiating approach, the applicant and Solvay Solexis were placed in the third of four categories, in respect of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision).

13      In order to ensure a sufficiently deterrent effect, a multiplier of 1.5 was applied to this starting amount, in view of the applicant’s high turnover. Since Solvay Solexis had been transferred to a different undertaking, this multiplier was not applied to its fine (recital 463 of the contested decision).

14      Since, according to the Commission, the applicant participated in the infringement from 12 May 1995 to 31 December 2000, that is, for a period of five years and seven months, the amount of its fine was increased by 55% in respect of its duration (recital 467 of the contested decision).

15      The Commission increased the amount of the applicant’s fine by 50% in respect of aggravating circumstances, in view of the recurrence of the infringement as found in Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article [81 EC] (Case 31.865 – PVC) (OJ 1994 L 239, p. 14) (recitals 469 and 496 of the contested decision).

16      Under 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), the Commission reduced the amount of the fine imposed jointly and severally on Solvay Solexis to 10% of its global turnover in 2005 (recital 498 of the contested decision).

17      Article 1(e) and (n) of the contested decision state that the applicant and Solvay Solexis infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement concerned from 12 May 1995 to 31 December 2000.

18      In Article 2(c) of the contested decision, the Commission imposed on the applicant a fine of EUR 58.125 million, for which Solvay Solexis was held to be ‘jointly and severally’ liable to the amount of EUR 25.619 million.

 Procedure and forms of order sought

19      By application lodged at the Registry of the Court on 19 July 2006, the applicant brought the present action.

20      The composition of the Chambers of the Court having been altered, the Judge-Rapporteur was assigned to the Sixth Chamber and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).

21      As two members of the extended Chamber were unable to sit in the present case, the President of the Court designated two other judges to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure of the Court.

22      On hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 2 September 2010.

23      The applicant claims that the Court should:

–        annul the contested decision, in so far as it concerns the applicant;

–        in the alternative, annul or reduce the amount of the fine imposed upon it;

–        order the Commission to pay the costs.

24      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 Preliminary observations

25      Since the applicant’s arguments in support of the claims for annulment are in essence directed against the finding that it is liable for the unlawful conduct of its subsidiary, it is appropriate first of all to recall the relevant case-law.

26      It is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, 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 between those two legal entities (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 58 and the case‑law cited).

27      In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC (Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 59).

28      In the specific case of a parent company holding 100% of the capital of a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, secondly, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 60 and the case-law cited).

29      In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as liable for the infringement at issue, 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, to that effect, Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 61 and the case‑law cited).

30      In order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 74; see also, to that effect, Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 65).

31      In the present case, in recitals 370 to 379 of the contested decision, the Commission observed that a parent company could be considered to be liable for the illegal conduct of a subsidiary in so far as the latter does not decide independently upon its own conduct on the market. It stated that it was correct in presuming that a wholly-owned subsidiary carries out, in all material respects, the instructions of its parent company, that latter company being able to rebut the presumption by evidence to the contrary.

32      Concerning the imputation of Ausimont’s unlawful conduct to the applicant, the Commission stated, first, in recital 416 of the contested decision, that Ausimont was its ‘directly controlled’ subsidiary at the time of the infringement.

33      In recital 417 of the contested decision, it referred to the arguments used by the applicant to challenge that imputation.

34      In recital 418 of the contested decision, the Commission stated that, contrary to the arguments submitted by the applicant, the complete control of a subsidiary was enough to prove a parent company’s liability, in the absence of an argument rebutting the resulting presumption.

35      As regards, next, the arguments put forward by the applicant in support of Ausimont’s independence, the Commission observed, in recitals 419 to 421 of the contested decisions, that ‘other matters indicat[ed] the contrary’ referring, first, to the circumstances of the participation of the applicant’s directors in the meeting of March 1994 with Degussa’s representatives and, secondly, to the fact that one member of Ausimont’s board of directors was also a member of Montecatini’s board, and to the circumstances of the restructuring of the group in December 2000. The Commission held, in recital 422 of the contested decision, that ‘other matters’ submitted by the applicant, inter alia the fact that it was not aware of the cartel, were not sufficient to rebut the presumption.

36      Lastly, the Commission upheld the applicant’s liability, having regard to its ‘involvement … in Ausimont’s commercial transactions’ and to its 100% shareholding in the latter (recital 423 of the contested decision).

37      Disputing this assessment, the applicant essentially raises three pleas in law, alleging, first, infringement of its rights of defence, secondly, infringement of the duty to state reasons and, thirdly, infringement of Article 81 EC.

38      The Court is of the view that it is appropriate to examine the second plea first.

 The alleged infringement of the duty to state reasons

 Arguments of the parties

39      In the context of the second plea, the applicant submits, first, that the finding that it had a 100% shareholding in Ausimont is not a sufficient ground to explain how liability for the infringement at issue could be imputed to it and that the reasoning of the contested decision is inconsistent and inadequate, so far as concerns the two other factors upheld in recitals 419 to 421 of that decision.

40      In particular, concerning the meeting of 16 March 1994, relied upon in recital 420 of the contested decision, the applicant provided the Commission, in its reply of 13 April 2006, with a number of items of evidence demonstrating that the circumstances of the meeting at issue could not serve as a basis for its liability for the infringement at issue but that, on the contrary, they confirmed the independence of its subsidiary.

41      Secondly, the applicant claims that it submitted, in its reply to the statement of objections, evidence of Ausimont’s independence. The Commission rejected that evidence as inadequate without setting out the grounds for that rejection. The contested decision is vitiated by a complete failure to state reasons on this aspect. The Commission did not even examine any of the points of fact and of law raised by the applicant to demonstrate Ausimont’s independence.

42      In the presence of that evidence, the Commission was not able to base its findings on a ‘purely formal matter’, the fact that the applicant indirectly held the entire capital of Ausimont, and on only two factual circumstances, namely the meeting of 16 March 1994 and the fact that one member of Ausimont’s board of directors was also a member of Montecatini’s board. The arguments put forward by the Commission for the first time before the Court cannot be taken into account in this respect.

43      Since the Commission imputed liability to the applicant on the basis of a presumption, it should have analysed the evidence put forward by the applicant with special care. Its rejection of it without stating any reasons has the result of changing the straightforward presumption into an irrebuttable presumption, implying the applicant’s strict liability.

44      The Commission states in reply that the applicant’s complete control of Ausimont gives rise to a presumption of its decisive influence over the conduct of that subsidiary. The factors mentioned in recitals 420 and 421 of the contested decision served as supplementary evidence of that influence, which was already apparent from the presumption at issue.

45      As regards the first factor, the information provided by Degussa and the applicant shows that they jointly organised the meeting of 16 March 1994, and that the chairman of Ausimont was invited ‘on the spur of the moment’. His main objective was to discuss the possible purchase by Degussa of Ausimont’s activities in the sector at issue, and Ausimont’s project to build a new factory at Bitterfeld (Germany). The fact that this meeting was organised by the applicant constitutes evidence of its influence over Ausimont’s activities.

46      Contrary to the applicant’s argument, Degussa’s note shows that the HP and PBS sector in general was also discussed. That is confirmed by Ausimont’s chairman. Although the meeting in question took place approximately one year before the beginning of the infringement, there is no reason to hold that it is not demonstrative of the relationship between the applicant and Ausimont during the infringement, since the structure of the group did not change in the meantime.

47      As regards the second factor, the fact that Ausimont’s chairman was a member of Montecatini’s board of directors constitutes evidence of the applicant’s intention to guarantee the stability of the chain of control between it and Ausimont.

48      The applicant’s argument concerning the lack of any link in terms of employees between itself and Ausimont is, moreover, belied by the fact, evident from Solvay Solexis’s reply to a request for information, that the applicant’s chairman and one member of its board of directors were members of Ausimont’s board of directors for part of the period of the infringement. Although this matter was not included in the contested decision, the Commission contends that it is entitled to rely upon it in response to the applicant’s argument.

49      As regards the reasons for the rejection of the contrary evidence, the Commission states that its duty to state reasons does not extend to the obligation to examine all the issues of fact and of law which were dealt with during the administrative procedure. It contends that none of the matters put forward by the applicant in its reply to the statement of objections proved Ausimont’s independence.

50      The Commission contends that it stated sufficient reasons for its decision and, inter alia, that it explained adequately why it had rejected the applicant’s arguments. In particular, in recitals 419 to 421 of the contested decision, it responded to the applicant’s arguments that Ausimont was independent, drawing attention in that connection to the fact that there was contrary evidence, namely the meeting of 16 March 1994 and the function carried out by Ausimont’s chairman on Montecatini’s board of directors.

51      The matters submitted by the applicant were, in any event, inadequate. The fact that a subsidiary’s activity is not the core activity of the group is not relevant evidence. The applicant’s participation in the restructuring of the group logically led to its involvement in the most significant strategic choices, specifically to prevent those choices from prejudicing the restructuring of the group. The fact that the parent company does not directly or indirectly oversee the day-to-day business of the subsidiary does not establish the latter’s independence. It is enough, for a finding of decisive influence, that the parent company influences the fundamental strategic choices of the subsidiary.

52      The control of the group as described by the applicant, exercised through three committees which met the directors of the subsidiaries each quarter, cannot be compared with the management of a shareholding by a holding company which is purely financial. Furthermore, according to the statement of Ausimont’s chairman, the applicant was informed of the ‘plans and budget of the Ausimont group’, the ‘general objectives’ and the ‘general principles concerning human resources’, and was in charge of ‘covering the financial requirements’ of Ausimont for the purposes of the implementation of its most significant strategic projects.

53      The fact that, under the statutes of the company, Ausimont’s board of directors had a wide discretion as regards commercial activities does not constitute evidence of its independence, in particular in the light of the fundamental strategic choices. The applicant took part in the strategic decisions concerning Ausimont’s plans for a new factory at Bitterfeld and a joint venture in the United States.

54      The alleged lack of evidence of interference in the minutes of the meetings of the applicant’s and Ausimont’s board of directors, which indeed were not adduced, is not sufficient, since the exercise of that influence would not necessarily be revealed from such minutes.

55      Thus, according to the Commission, even if the contested decision is vitiated by defective reasoning so far as concerns the rejection of the arguments put forward by the applicant in its reply to the statement of objections, it would be inappropriate to annul it, since that annulment could only lead to the adoption of another decision identical in substance to the decision annulled (Joined Cases T‑217/03 and T‑245/03 FNCBV and Others v Commission [2006] ECR II‑4987, paragraph 363).

 Findings of the Court

56      According to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

57      The Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 64; see also, to that effect, Commission v Sytraval and Brink’s France, paragraph 56 above, paragraph 64).

58      Where, as in the present case, a decision taken in application of Article 81 EC relates to several addressees and raises a problem of imputing liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, with regard to a parent company held liable for the offending behaviour of its subsidiary, such a decision must contain a detailed statement of reasons for imputing the infringement to that company (see, to that effect, Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraphs 78 to 80).

59      It is apparent from recitals 416 to 423 of the contested decision that imputing the unlawful conduct to the applicant relies on the finding of the actual exercise of its decisive influence over Ausimont, stemming from a presumption linked to its complete control of that subsidiary through an interposed company, since that presumption has not, according to the Commission, been rebutted by the applicant.

60      The applicant claims that, in the contested decision, the Commission did not set out sufficient reasons as regards the finding of its liability, in particular in so far as it did not clarify the reasons for the rejection of the evidence adduced in order to rebut the presumption.

61      The file shows that the applicant, in its reply to the statement of objections, put forward specific arguments to demonstrate Ausimont’s independence.

62      First of all, it maintained that at the time of the infringement it had the role of a non-operational holding company of an extremely diversified group, stating that it only resumed its activity as a generator and supplier of electricity in 2002. In this connection it adduced a summary of VAT (value added tax) returns relating to its own company’s activity and that of the company through which it controlled Ausimont, Montecatini, covering the entire duration of the infringement.

63      It stated that the holding activity did not involve it in the management of the subsidiaries, control of which was restricted to verification of the financial results through internal and external audits. It relied, in that regard, on documents dating from the time of the infringement concerning the organisation of the internal audit, drawn up by its management.

64      It then invoked the special circumstances of the group’s severe financial difficulties, stating that all the directors of the group had been replaced in 1993 and that its new directors had put in place a plan for divestiture of the group’s non-strategic activities, to cover the period from 1993 to 2001 and intended to reduce the financial imbalance and to avoid bankruptcy. It stated that the consequences of that plan were that the companies in the group would be managed completely independently, in particular Ausimont, which had been active in the field not regarded as essential and whose divestiture was in progress.

65      In support of those arguments, the applicant set out information on the functioning of its group, which consisted in 1995 of 932 companies active in various sectors of the economy and which had undergone significant reorganisation, completed in 2002, the aim of which was to concentrate its activities on the energy sector.

66      In addition, it submitted a number of items of evidence, namely the letter sent by one of its directors to third parties in 1995, stating inter alia that the ‘consolidated policy from now on [was] to delegate all operational management to [the] companies [in the group]’, the statement from Ausimont’s former chairman giving evidence of his independence in matters of commercial policy, a copy of Ausimont’s statutes, according to which its board of directors had been vested with ‘the widest possible powers for the ordinary and extraordinary management of the company’ and the ‘power to take any action it deem[ed] necessary to achieve the mission of the company’, and the minutes of Ausimont’s board of directors of 27 May 1996, conferring on its chairman ‘full powers and the right of ordinary and extraordinary management of the company’.

67      The applicant also stated that Ausimont had all the structures and departments necessary to manage itself independently, that the minutes of the meetings of the applicant’s board of directors did not contain any evidence of discussion relating to the subsidiaries’ commercial policy and that those of Ausimont’s board of directors did not contain any reference to instructions it might have received concerning commercial policy, and offered to produce all those documents at the Commission’s request.

68      Lastly, the applicant referred to the statements of Solvay Solexis, repeated in its reply to a request for information sent by the Commission and forming part of the administrative file, from which it is apparent that Ausimont’s board of directors had a wide discretion as regards commercial activities at the time of the infringement.

69      In recital 417 of the contested decision, the Commission reviewed the arguments put forward by the applicant.

70      It then stated, in recital 419 of the contested decision, that ‘the argument submitted by [the applicant] regarding [its subsidiary’s] independence’ was inconsistent with the matters set out in recitals 420 and 421 of the contested decision. Lastly, in recital 422 of the contested decision, it concluded that ‘other matters’ submitted by the applicant were inadequate to rebut the presumption at issue.

71      That reasoning does not address the arguments put forward by the applicant, but merely refers to certain additional items of evidence set out in recitals 420 and 421 of the contested decision. Consequently, the abovementioned grounds for the contested decision do not set out the reasons why the Commission is of the view that the matters submitted by the applicant were inadequate to rebut the presumption at issue.

72      Furthermore, it must be held that, although the Commission is not obliged to adopt a position on all the matters relied on by the party concerned, in particular where those are manifestly irrelevant or insignificant or plainly of secondary importance (see paragraph 57 above), in the present case, in contrast to what is maintained by the Commission, the matters put forward by the applicant cannot be regarded as insignificant in the light of the assessment of Ausimont’s independence.

73      The applicant did not only rely on the fact that it was a holding company managing its subsidiary as a straightforward financial investment, through an interposed holding company, but also pleaded a body of special circumstances characterising the links between the companies concerned at the time of the infringement at issue.

74      In particular, it submitted detailed arguments that the new directors of the holding company, which took over the management of the group following its severe financial difficulties in 1993, adopted reorganisational measures which involved choosing to allow the companies in the group to act independently, taking into account, first, the objectives of the holding company in the face of the financial difficulties and, secondly, the diverse nature of the group’s activities.

75      The matters submitted by the applicant are not mere contention, but contain detailed information on the functioning of the holding company, accompanied by statements by the directors of the companies concerned, exchanges of correspondence with third parties and a number of internal documents from the companies concerned, dating from the period of the infringement.

76      In those circumstances, the Commission was required to adopt a position on the applicant’s contrary arguments, examining whether, in the light of all the relevant factors relating to economic, organisational and legal links between the companies concerned, the applicant had demonstrated that its subsidiary acted independently on the market.

77      The Commission’s duty to state reasons for its decision on this issue is clearly evident from the rebuttable nature of the presumption at issue, in order to rebut which the applicant was required to produce evidence of all the economic, organisational and legal links between itself, the interposed company, and the subsidiary.

78      Moreover, the failure to state reasons at issue cannot be remedied by the reference made to the evidence set out in recitals 420 and 421 of the contested decision.

79      First, as regards the circumstances of the applicant’s representatives’ participation in the meeting of 16 March 1994, which gave rise inter alia to discussions on the continuation of an investment project by Ausimont, and on the possible transfer of its activities (recital 420 of the contested decision), it is possible that the interference of the parent company in the strategic choices of its subsidiary indicates the exercise of a decisive influence.

80      Nevertheless, by relying on the meeting at issue as evidence of the exercise of influence on Ausimont, the Commission did not adopt a position on the contrary arguments submitted by the applicant in its reply, of 13 April 2006, to the request for information sent to it on 4 April 2006, that is, one month before the adoption of the contested decision.

81      In this connection, the applicant stated inter alia in that reply, referring to Degussa’s note relating to the meeting at issue, to the statement of one of its former directors and to that of a former chairman of Ausimont, that its managers who took part in the meeting at issue had just taken up their posts following a period of severe financial difficulties, that they regarded that meeting as a courtesy meeting and that they were not able to engage in discussion with full knowledge of the facts. It argued that its company had found itself, at the material time, in administration, ‘supervised’ by creditor banks, which had become its principal shareholders and which had to give their authorisation for any investment above a certain threshold. That justified, on any view, the presence of the directors of the holding company at discussions concerning the investment project at issue and, a fortiori, at those concerning the possible transfer of Ausimont’s activities. Lastly, the applicant pointed out that the meeting at issue took place more than a year before the start of the infringement and could therefore not serve as direct evidence of influence exercised during the period of the infringement.

82      The Commission did not reply to those arguments, merely stating that the applicant had admittedly ‘confirmed that Ausimont’s interest was not simply financial, but ha[d] submitted solely a statement [from Ausimont’s former chairman] which does not add any new evidence to change [its] view’ (recital 420 of and footnote 391 to the contested decision).

83      Secondly, so far as concerns the matter put forward in recital 421 of the contested decision, namely the fact that a member of Ausimont’s board of directors was also on the board of Montecatini, it must be observed that, since this is, as the Commission acknowledges in the defence, a matter which was not set out in the statement of objections and on which the applicant has not had the chance to make known its view during the administrative procedure, it cannot be regarded as admissible as evidence against the applicant (see, to that effect, Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 162 and the case‑law cited). Consequently, the Commission cannot rely on it for the purposes of the reasoning of the contested decision.

84      Moreover, even though, in recital 421 of the contested decision, the Commission also referred to certain circumstances of the restructuring of the group in December 2000, those facts essentially concern the transfer of Ausimont to the Solvay group, which took place after the end of the infringement. The Commission does not specify how the circumstances of that transfer show any evidence of the influence exercised by the applicant on Ausimont’s conduct at the time of the infringement.

85      In those circumstances, the Commission’s reference to the matters set out in recitals 420 and 421 of the contested decision is not such as to call into question the relevance of the applicant’s arguments alleging Ausimont’s independence and, therefore, is not a sufficient ground for the rejection of those arguments.

86      Concerning the Commission’s argument relating to the existence of other evidence of the influence exerted by the applicant over Ausimont, namely the fact that the chairman and one member of the board of directors of the applicant were members of Ausimont’s board of directors for part of the period of the infringement, and the applicant’s involvement in one of Ausimont’s projects relating to a joint venture in the United States, those matters were not set out in the contested decision and cannot therefore remedy the inadequacy of the reasons stated in it.

87      Having regard to the foregoing, it must be held that the Commission did not adopt a position on the basis of detailed reasons on the evidence adduced by the applicant in order to rebut the presumption following from its shareholding in Ausimont and, thus, has not given sufficient reasons for its finding as regards the imputation of the infringement at issue to the applicant.

88      Inasmuch as the Commission contends, in the defence, that the contrary evidence relied on by the applicant was, in any event, inadequate to demonstrate Ausimont’s independence, no assessment by the Commission of the evidence at issue is apparent from the grounds of the contested decision. This impedes the review of the validity of the contested decision on this aspect.

89      In addition, the statement of reasons must in principle be notified to the party concerned at the same time as the decision adversely affecting it and a failure to state the reasons cannot be remedied by the fact that the party concerned learns the reasons for the decision during the proceedings (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 463, and Case T‑25/04 González y Díez v Commission [2007] ECR II‑3121, paragraph 220).

90      Therefore, the failure to state reasons at issue cannot be remedied in the course of the proceedings.

91      In this connection, the Commission cannot legitimately rely on FNCBV and Others v Commission, paragraph 55 above, paragraphs 362 to 363, in which the General Court found that it committed an infringement of the duty to state reasons in the context of the determination of fines imposed for infringements of Article 81(1) EC, while stating that, in so far as the measure or decision upheld by that institution was to be confirmed as to its substance, that infringement did not lead either to the annulment of the contested decision or to an alteration of the amount of the fines.

92      That last appraisal, which was made in the context of the unlimited jurisdiction of the General Court regarding pecuniary sanctions, cannot be transposed to the present case, concerning the review of the legality of the contested decision, in so far as the Commission in it upheld the applicant’s liability for the infringement at issue.

93      Whereas the assessment of the appropriateness of the amount of the fines carried out by the General Court in the context of its unlimited jurisdiction may, in some circumstances, justify the taking into consideration of additional information, that consideration does not apply in the context of the review of whether the duty to state reasons has been observed in the decision finding the infringement, when the legality of that decision is being reviewed (see, to that effect, Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraphs 54 and 55).

94      In the light of all the foregoing, the plea alleging infringement of the duty to state reasons must be upheld and the application for annulment of the contested decision, in so far as it concerns the applicant, must be granted.

95      Consequently, it is not necessary to rule on the first and third pleas.

 Costs

96      Under 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 Commission has been unsuccessful, it must be ordered to pay the costs in accordance with the forms of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Sixth Chamber, Extended Composition)

hereby:

1.      Annuls Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate), in so far as it concerns Edison SpA;

2.      Orders the European Commission to pay the costs.

Vadapalas

Prek

Dittrich

Truchot

O’Higgins

Delivered in open court in Luxembourg on 16 June 2011.

[Signatures]

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* Language of the case: Italian.