Judgment of the General Court (Fourth Chamber) of 7 June 2011 – Total and Elf Aquitaine v Commission

(Case T-206/06)

Competition – Agreements, decisions and concerted practices – Market for methacrylates – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Imputability of the unlawful conduct – Rights of the defence – Presumption of innocence – Duty to state reasons – Principle of equal treatment – Principle that penalties must fit the offence – Principle of nullum crimen, nulla poena sine lege – Principle of sound administration – Principle of legal certainty – Misuse of powers – Fines – Attribution of liability for payment within a group of companies

1.                     Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 45-48, 115-116, 205)

2.                     Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Subsidiary held by a holding company – Fact not sufficient to reverse the presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 78-79, 85)

3.                     Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence – Undertakings afforded the opportunity to state their views on the facts, objections and circumstances alleged by the Commission (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 130-133)

4.                     Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision relating to several addressees – Need for sufficient reasoning, particularly with regard to the entity having to bear the burden of an infringement (Arts 81 EC and 253 EC) (see paras 177-178)

5.                     Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Allocation of payment of the fine between the various legal entities comprising the economic unit – No infringement of the unitary character of the concept of an undertaking (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 205-209)

6.                     Competition – Fines – Amount – Determination – Deterrent effect – No obligation to take account of fines already imposed for other anti-competitive activities (Art. 81 EC; Council Regulation No 1/2003, Art. 23) (see paras 297-298)

7.                     Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size and global resources of the fined undertaking (Art. 81 EC; Council Regulation No 1/2003, Art. 23) (see para. 303)

8.                     Procedure – Request that the oral procedure be reopened – Conditions for admissibility – New evidence capable of having a decisive impact on the decision (Rules of Procedure of the General Court, Art. 62) (see para. 306)

Re:

Operative part

The Court: