1. 

The present appeals are directed against the judgment of the General Court of 13 December 2012 in Versalis and Eni v Commission, ( 2 ) by which the General Court, in essence, dismissed the action for annulment of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38629 — Chloroprene rubber) ( 3 ) and reduced the level of the fine which the European Commission jointly and severally imposed on Eni SpA and Versalis SpA.

2. 

In customary fashion, these two appeals raise a series of pleas in law which, in essence, contest the General Court’s assessment of the attribution of the infringements to the companies ordered to pay a joint and several fine in this case and its assessment of the determination of the amount of that fine.

3. 

In this instance, it is the subsidiary of a group and its parent company which have been held liable for the infringements established, in a context in which the business in question was successively controlled by several bodies within the group. However, since the Court recently had occasion to adopt a position on the main questions linked to this issue, in particular in the cases which gave rise to the judgments in Eni v Commission ( 4 ) and Versalis v Commission, ( 5 ) which display a number of similarities with the present cases, I shall not be addressing them at great length here.

4. 

By contrast, this Opinion will focus on what may be regarded as the main issue raised by these two cases, that is to say the circumstances in which the Commission may, by reason of repeated infringement, increase the basic amount of a fine imposed on a parent company, on the ground that an infringement was previously found to have been committed by one of its subsidiaries.

5.

The background to the dispute and the content of the contested decision were summarised by the General Court in paragraphs 1 to 25 of the judgment under appeal, to which reference is made for further details.

6.

For the purposes of the examination of the present appeals, I shall simply point out that, pursuant to Articles 1(d) and 2(d) of the contested decision, Polimeri Europa SpA, ( 6 ) now Versalis SpA, ( 7 ) and its parent company, Eni SpA, to which that decision was formally addressed, were ordered jointly and severally to pay a fine of EUR 132 160 000 for having infringed Article [101 TFEU] by participating, between 13 May 1993 and 13 May 2002, in a single and continuous agreement and in concerted practices in the chloroprene rubber sector.

7.

In the present case, the chloroprene rubber business within the Eni group, initially carried on by EniChem Elastomeri, was transferred to EniChem, now [confidential], and then, with effect from 1 January 2002, to Polimeri Europa, now Versalis, EniChem Elastomeri and Polimeri Europa having been wholly owned by EniChem, which was itself controlled by Eni.

8.

As is clear from recitals 448 to 455 of the contested decision, it was in its capacity as the economic successor to EniChem that Polimeri Europa, now Versalis, was held liable for the previous conduct of EniChem.

9.

As is clear from recital 457 of the contested decision, it was in its capacity as the group’s ultimate parent company, holding, in part directly and in part indirectly, between 99.93% and 100% of the equity in the companies responsible for the group’s chloroprene rubber business, namely EniChem Elastomeri, EniChem (now [confidential]) and then Polimeri Europa (now Versalis), that Eni was found guilty of the infringement, other factors having also served to corroborate the exercise by Eni of decisive influence over those subsidiaries.

10.

By application of 20 February 2008, the appellants brought an action against the contested decision, raising a total of eleven pleas in law, six seeking to have that decision annulled and five seeking to have the fine imposed on them annulled or reduced.

11.

By the judgment under appeal, the General Court upheld the first limb of the eighth plea in law raised by the appellants, finding that the contested decision was vitiated by illegality in so far as, first, the Commission could not find that Eni’s case was aggravated by the circumstance of repeated infringement and, secondly, it could not find that the case of Polimeri Europa, now Versalis, was aggravated by the circumstance of repeated infringement, on the basis of the Polypropylene decision ( 8 ) (paragraph 287 of the judgment under appeal). It dismissed as unfounded the various limbs of the other pleas in law.

12.

Consequently, it reduced the amount of the fine imposed on the applicants to EUR 106 200 000 and ordered them to pay four fifths of their own and of the Commission’s costs.

13.

The grounds of the judgment of the General Court called into question by the parties on appeal will be cited, as necessary, in the course of the analysis of the various pleas in law raised.

14.

The judgment under appeal is the subject of two appeals.

15.

The Commission brought its appeal in Case C‑93/13 P by document lodged on 25 February 2013.

16.

Eni and Versalis brought their appeal in Case C‑123/13 P by document lodged on 15 March 2013.

17.

The two cases were joined for the purposes of the oral procedure and the judgment.

18.

The various parties were heard at the public hearing held on 27 February 2014, at which they had been asked to focus their oral argument on the various pleas in law relating to repeated infringement (first plea in law in Case C‑93/13 P and fifth plea in law in Case C‑123/13 P) and to state their views on the judgments in Eni v Commission ( 9 ) and Versalis v Commission. ( 10 )

19.

In its appeal in Case C‑93/13 P, the Commission raises three pleas in law, all of which are directed against the General Court’s assessment of the legality of the fines imposed on Eni and Versalis. In their appeal in Case C‑123/13 P, Eni and Versalis raise eight pleas in law, the first three of which are directed against the General Court’s assessment of the classification of the infringements and the other five against the General Court’s assessment of the legality of the fines imposed on them.

20.

The various pleas in law will be examined in line with that dichotomy, in the order of the paragraphs of the judgment under appeal to which they refer, although I would point out at the outset that, with the exception of the first plea in law raised by the Commission in Case C‑93/13 P, which requires substantial analysis, they will all be dismissed following a brief statement of reasons.

21.

The first three pleas in law raised by the appellants in Case C‑123/13 P relate to those grounds of the judgment under appeal that concern the infringement and, more specifically, the attribution of that infringement to Eni and Versalis, pursuant to the case-law in Akzo Nobel and Others v Commission. ( 11 )

22.

By their first plea in law, the appellants contest the General Court’s assessment, in paragraphs 53 to 78 of the judgment under appeal, of the attributability to Eni of the unlawful conduct of its subsidiaries EniChem Elastomeri, EniChem, now [confidential], and Polimeri Europa, now Versalis. They submit that the General Court failed to take properly into account the principles established, inter alia, in Akzo Nobel and Others v Commission ( 12 ) and, the obligations arising from the requirement to state reasons.

23.

The Commission confines itself to proposing that the plea in law should be dismissed and refers to the judgment in Eni v Commission, ( 13 ) in which the Court dismissed an analogous plea in law raised in a similar context.

24.

The arguments advanced by the appellants cannot succeed. In paragraphs 53 to 78 of the judgment under appeal, the General Court gave sufficient reasons for its view that the Commission had rightly held Eni to be jointly and severally liable with Polimeri Europa, now Versalis, for the unlawful conduct committed by the latter and by EniChem, now [confidential], during the period from 13 May 1993 to 13 May 2002. In this connection, I shall simply refer to the grounds of the judgment in Eni v Commission, ( 14 ) in which the Court rejected arguments of the same nature which had been raised in a similar context, the appellants having adduced no evidence that would justify a departure by the Court from the grounds adopted in that judgment.

25.

The appellants submit that the General Court committed an error of law in attributing to Versalis an infringement in connection with the chloroprene rubber business during the period from 13 May 1993 to 31 December 2001, ( 15 ) in so far as, during that time, that business fell within the exclusive responsibility of EniChem, now [confidential]. They submit that the General Court failed to take properly into account (i) the principle that penalties must be specific to the offender and (ii) the obligations arising from the requirement to state reasons.

26.

The Commission contends that the appellants’ second plea in law relates to an assessment of the facts which falls outside the scope of the Court’s power of review on appeal and must therefore be dismissed as inadmissible on the ground that the appellants have not claimed that there has been a distortion of the facts. It submits that, in any event, the appellants have altered the scope of the case-law of the Court on which they rely.

27.

The arguments advanced by the appellants cannot succeed. In paragraphs 89 to 99 of the judgment under appeal, the General Court gave sufficient reasons for its view that the Commission had rightly attributed the unlawful conduct committed by EniChem, now [confidential], to Versalis, and did so without failing to take into account the relevant case-law of the Court of Justice. ( 16 ) In this connection, I shall simply refer to the grounds of the judgment in Versalis v Commission, ( 17 ) in which the Court rejected arguments of the same nature which had been raised in a similar context, the applicants having adduced no evidence that would justify a departure by the Court from the grounds adopted in that judgment.

28.

The appellants submit that the General Court committed an error of law and distorted the facts and evidence in finding that they had participated in the cartel between May 1993 and February 1994 and between October 2000 and May 2002. In particular, in paragraph 173 of the judgment under appeal, the General Court wrongly accepted the Commission’s conclusion that EniChem’s participation in the cartel could be said to have started at the meeting held in Florence on 12 or 13 May 1993, in so far as it did not publicly distance itself from the agreement on target markets said to have been concluded there. It also wrongly concluded that the two meetings held in Leverkusen on 23 April 2002 and in Naples on 13 May 2002 were anti-competitive.

29.

The reasons given for the judgment are also erroneous or at least insufficient. The applicants therefore ask that the Court re-examine the complaints raised by the Commission and limit the duration of the participation in the infringement to a period running from February 1994 to October 2000.

30.

The Commission proposes that the plea in law be dismissed as inadmissible.

31.

The third plea in law must be dismissed as inadmissible as the appellants, largely reproducing the arguments advanced at first instance, essentially contest the General Court’s assessment of the facts and evidence relied on by the Commission in order to establish the start and end dates of their participation in the cartel (paragraphs 147 to 204 of the judgment under appeal), without indicating precisely the evidence alleged to have been distorted by it or showing the errors of analysis which led to such distortion in its assessment. ( 18 )

32.

I would simply observe that, in the present case, the General Court held (paragraph 168 of the judgment under appeal) that the Commission had been entitled to take the view that EniChem’s participation in the cartel had begun at the meeting in Florence on 12 or 13 May 1993, taking into account, among other uncontested evidence, the fact that it had been included in the agreement concluded and had not distanced itself from it. The appellants, who have not furnished any evidence to show that EniChem did publicly distance itself from the agreement concluded at that meeting, ( 19 ) do not give any indication of how that finding results from a distortion of the facts or evidence.

33.

The appellant’s fourth plea in law, which comprises two limbs, relates to the General Court’s assessment of the determination by the Commission of the basic amount of the fine imposed on them. Under the first limb, they submit, with reference to paragraphs 239 and 240, 242, 247 and 249 of the judgment under appeal, that the General Court infringed EU law, in particular the principles of fairness, proportionality and equal treatment, by not exercising its unlimited jurisdiction to review the evidence adduced by them to contest the determination by the Commission of the basic amount and of the additional amount of the fine. In particular, the General Court failed to address their complaints alleging that the Commission had not applied paragraph 18 of the Guidelines on the method of setting fines pursuant to Article 23(2)(a) of Regulation No 1/20003. ( 20 ) Under the second limb of the plea in law, the applicants submit, referring in this regard to their third plea in law, that the multiplier to reflect the duration of the infringement, provided for in paragraph 24 of the Guidelines, should have been reduced to 6.75, corresponding to the 6 years and 9 months during which Versalis actually participated in the infringement.

34.

The Commission takes the view that this plea in law, which, by and large, consists of little more than references to the arguments advanced at first instance, must be dismissed as inadmissible

35.

The first limb of the appellants’ plea in law must be dismissed as inadmissible since, in reality, it amounts to no more than a request for re-examination of the application submitted to the General Court, which, in accordance with Article 56 of the Statute of the Court of Justice, falls outside the jurisdiction of the Court of Justice. ( 21 ) It is sufficient to point out in this regard that the appellants refer in general terms to their application at first instance, mentioning certain factors which they claim were not taken into account by the General Court, but without explaining the errors of law which are said to vitiate the General Court’s assessment or disputing the General Court’s interpretation or application of EU law. ( 22 ) The complaint alleging failure to apply paragraph 18 of the Guidelines must also be dismissed as inadmissible, in so far as the appellants simply make the claim, contested by the Commission, that they raised that complaint at the hearing before the General Court. Furthermore, taking into account the proposed answer to the third plea in law, the second limb of this plea in law must also be dismissed.

36.

In paragraph 275 of the judgment under appeal, the General Court held that the infringement established in Article 1 of the contested decision cannot be regarded as a repeated infringement on the part of Eni. It follows, in essence, from the grounds of the judgment under appeal (paragraphs 268 to 275) that two sets of concomitant considerations operate to justify that conclusion.

37.

The first is that, in its Polypropylene and PVC II decisions, ( 23 ) the Commission had ‘neither claimed nor shown’ that the companies concerned by those decisions, namely Anic SpA and EniChem, had not independently determined their conduct on the market at issue over the course of the infringement periods and that they therefore constituted an economic entity with Eni (paragraph 272 of the judgment under appeal). Thus, Eni had neither been penalised nor even had a statement of objections addressed to it (paragraphs 272 and 274).

38.

The second is that Eni had not been, as the parent company, in a position to establish that it did not constitute an economic unit with the two companies penalised by the aforementioned decisions. Eni could not therefore be held liable for the earlier infringement, since to do so would be to disregard its rights of defence and, more specifically, its right to challenge the existence of a single economic unit with the two undertakings penalised (paragraphs 273 and 274 of the judgment under appeal).

39.

The General Court held, however, in paragraph 276 of the judgment under appeal, that the fact Eni could not be found to have committed a repeated infringement was not in itself such as to bring about the annulment of the contested decision or the reduction of the amount of the fine imposed, since a finding of repeated infringement on the part of Polimeri Europa, now Versalis, could justify an increase in the amount of the fine by reason of repeated infringement.

40.

Under its first plea in law in Case C‑93/13 P, which is sub-divided into two limbs, the Commission submits that the General Court committed an error of law in finding that it had wrongly increased the basic amount of the fine imposed on Eni by reason of repeated infringement. It refers very specifically to paragraphs 271 to 274 of the judgment under appeal.

41.

Under the first limb of this first plea in law, the Commission submits that the General Court misapplied the principle of respect for the rights of the defence for the purposes of establishing repeated infringement, in taking the view, in essence, that Eni could not be found to have committed a repeated infringement since it had not had the opportunity to rebut the presumption that it had exercised complete control over the undertakings to which the Polypropylene and PVC II decisions had been addressed.

42.

The Commission takes the view, with reference to the judgment of the General Court in the judgment in Shell Petroleum and Others v Commission, ( 24 ) that the rights of the defence are guaranteed provided that, at the time when it announces its intention to make a finding of repeated infringement, the Commission gives the parties the opportunity to demonstrate that the conditions for such a finding are not met. That was the situation in the present case. Paragraph 416 of the statement of objections specifically drew its addressees’ attention to the first indent of paragraph 28 of the 2006 Guidelines, concerning repeated infringement, and footnote No 483 refers in this regard to the PVC II and Polypropylene decisions. Eni sought neither to rebut the presumption as to decisive influence over the undertakings to which the Polypropylene and PVC II decisions had been addressed, nor, given the time which had elapsed since those two decisions were adopted, to cite the impossibility of adducing relevant evidence in that regard.

43.

It adds that a finding of repeated infringement is not intended to penalise an initial infringement retroactively, but simply to give due effect to an undertaking’s commission of a new infringement.

44.

Under the second limb of its first plea in law, the Commission submits that the General Court also, and in any event, committed a manifest breach of Article 101 TFEU in finding that the Commission could not hold Eni liable for an infringement committed in the past for which it had not been penalised. A finding of repeated infringement is based not on the imposition of an earlier financial penalty but only on the establishment of the existence of a previous infringement.

45.

In the present case, Eni was found to have committed a repeated infringement not because it was ‘held liable for an earlier infringement’ but because it exercised full control over a subsidiary which had previously been ordered to pay a fine and the undertaking that it forms with that subsidiary committed a new infringement which must give rise to a fine that may properly be increased by reason of repeated infringement.

46.

Eni, on the other hand, argues that it cannot be regarded as a repeat offender since it was never a party to the Polypropylene and PVC II cases, it was neither an addressee of the infringement decisions nor even mentioned in them, it did not receive any requests for information or statements of objections and it was never even given the opportunity to state its views at a hearing. The ex post attribution of liability for repeated infringement on the basis of a presumption which it has never been in a position to challenge is incompatible with the principle of respect for the rights of the defence, as the General Court held.

47.

It must be pointed out first of all that, in accordance with the case-law of the Court, the EU institutions do not have to show interest in order to be able to bring an appeal against a judgment of the General Court. ( 25 ) Consequently, the fact that the first plea in law of the Commission’s appeal is directed against those grounds of the judgment under appeal by which the General Court held that the Commission had committed an error in making a finding of repeated infringement on Eni’s part in Article 1 of the contested decision, but without annulling that decision, cannot support a declaration by the Court to the effect that that appeal is inadmissible for lack of interest in bringing proceedings.

48.

Having clarified that matter, I wish, before examining the merits of the plea in law raised by the Commission, to give a brief account of the relevant case-law of the Court concerning repeated infringement in EU competition law ( 26 ) and to define clearly the terms of the issue raised by the present case. As we have just seen, these proceedings concern the particular case of a finding of repeated infringement made in the context of successive infringements committed by the companies within a group and, more precisely, the specific situation in which a parent company is found to have committed a repeated infringement on the sole ground of the earlier conduct of one of its subsidiaries.

49.

The amount of the fine that the Commission may, pursuant to 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 and 82 of the Treaty, ( 27 ) impose on undertakings or associations of undertakings which, either intentionally or negligently, infringe Articles 101 TFEU and 102 TFEU is fixed according to the gravity and, where appropriate, the duration of the infringement. ( 28 )

50.

Both the Court of Justice ( 29 ) and the General Court have consistently held that repeated infringement is one of the factors which must be taken into account as an aggravating circumstance in the analysis of the gravity of the infringement. ( 30 ) Now set down in the Guidelines, ( 31 ) repeated infringement is an aggravating circumstance capable of justifying an increase in the basic amount of the fine imposed on any undertaking found guilty of having continued or repeated an infringement identical or analogous to a previous infringement established by the Commission or a national competition authority.

51.

The finding and appraisal of the specific characteristics of a repeated infringement, a finding of which is intended to induce undertakings which have demonstrated a tendency towards infringing competition rules to change their conduct, ( 32 ) fall within the discretion which the Commission enjoys when it comes to the choice of factors to be taken into consideration for the purposes of setting the amount of fines. ( 33 )

52.

Beyond those clarifications, the Court of Justice, unlike the General Court, has never really gone any further in defining the concept of repeated infringement.

53.

Under the most common ( 34 ) definition used by the General Court, ‘[t]he concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements’. ( 35 )

54.

However, the Court of Justice ( 36 ) has held, confirming the case-law of the General Court in this regard, ( 37 ) that ‘the concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement of Community competition law has been made in the past’.

55.

In very general terms, therefore, any finding of repeated infringement in EU competition law presupposes the repetition of the same infringement by the same offender.

56.

A finding of repeated infringement on the part of undertakings owned by companies forming part of a group of companies exhibits certain specific characteristics, however, as the present case demonstrates. After all, it illustrates the difficulties that may arise when it comes to assessing the condition requiring that the repeated infringement be committed by the same offender, not in general but in the particular case where successive infringements of competition law are attributable to different companies within the same group. It should be pointed out in this regard that the condition requiring similarity between the infringements is not in debate here.

57.

Consequently, the arguments that follow are concerned not with the conditions for a finding of repeated infringement in general, but only with the permissibility of the Commission’s practice ( 38 ) of increasing the basic amount of the fine imposed on a company forming part of a group of companies for infringement of the competition rules, by reason of the aggravating circumstance of repeated infringement, on the basis of a broad construction of ‘undertaking’ as meaning an economic unit, in accordance with the case-law established in Akzo Nobel. ( 39 )

58.

I shall simply point out in this regard that, in accordance with that case-law, the unlawful 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.

59.

It is thus accepted that, in the particular case where a parent company holds all or almost all of the equity in its subsidiary, it may exercise a decisive influence over the conduct of that subsidiary, and that there is a rebuttable presumption that it does exercise a decisive influence over its subsidiary’s conduct. In those circumstances, the Commission has only to prove that all of a subsidiary’s equity is held by its parent company in order to be able to presume that the parent company exercises a decisive influence over the commercial policy of that subsidiary and to regard the parent company as being jointly and severally liable for payment of the fine imposed on its subsidiary, unless that parent company, to which it falls to rebut that presumption, adduces evidence sufficient to show that its subsidiary operates independently on the market.

60.

The three main scenarios that might theoretically be expected to arise from that state of affairs can be presented as follows. First, account might be taken of an earlier infringement by the subsidiary of a group in order to establish repeated infringement on the part of another subsidiary of that group. Next, account might be taken of an earlier infringement by the subsidiary of a group in order to establish repeated infringement on the part of the group’s parent company by reason of the conduct of that same subsidiary or of another subsidiary in the group. Finally, account might be taken of an earlier infringement by the subsidiary of a group in order to establish repeated infringement on the part of the group’s parent company, ( 40 ) the latter being penalised by reason of its own conduct. ( 41 ) It is that last scenario which is the subject of the present case.

61.

What those three scenarios have in common is the fact, at the heart of the present dispute, that, by taking the term ‘undertaking’ to mean an economic unit, the Commission may aggravate the penalty imposed on a parent company by taking as its basis an earlier infringement committed by an undertaking operating under the responsibility of a subsidiary which the parent company controlled, even if that parent company was not penalised for that first infringement and acted with complete transparency throughout the procedure culminating in the adoption of that first decision.

62.

The General Court has had the opportunity to examine the legality of that decisional practice of the Commission on several occasions. Generally speaking, its view has wavered between three positions, the first of which accepted the practice in principle, ( 42 ) thus opening the way for the Commission’s contested decisional practice to develop further, the second of which rejected the practice on the basis, largely, of non-compliance with a very strict obligation to state reasons, ( 43 ) and the third of which rejected the practice in principle ( 44 ) for reasons relating essentially to respect for the rights of defence of the parent companies regarded as repeat offenders in such circumstances.

63.

Thus far, the Court of Justice has had only one opportunity to examine the General Court’s assessment of the Commission’s decisional practice. In its recent judgments in Eni v Commission ( 45 ) and Versalis v Commission ( 46 ), given after the judgment under appeal, the Court confirmed, in those cases, the judgments of the General Court in Eni v Commission ( 47 ) and Polimeri Europa v Commission ( 48 ) annulling a decision making a finding of repeated infringement on the part of a parent company in circumstances similar, if not identical, to those of the present case. The Court of Justice held, in essence, that, where the Commission decides to impose a fine on a company for infringement of the competition rules and to increase the basic amount of that fine by reason of repeated infringement, it falls to the Commission ‘to provide, with the decision imposing the fine, [ ( 49 ) ] a statement of reasons enabling the European Union Courts and that company to understand in what capacity and to what extent it was involved in the earlier infringement’. It has a particular duty to give sufficient reasons for that assertion where it takes the view that that company formed part of the undertaking to which the decision relating to the earlier infringement was addressed.

64.

In those two judgments, the Court took the view in those cases that the contested decision, which imposed on the parent company of a group of companies a fine the basic amount of which had been increased by reason of repeated infringement in circumstances very comparable to those of the present case, was not sufficiently reasoned, since the information which it contained did not in any way enable the parent company, to which the previous Polypropylene and PVC II decisions had not been addressed, to understand in what capacity and to what extent it was involved in those decisions. ( 50 )

65.

It follows from those judgments that the Court does not, in principle, make it impossible for the Commission to apply the aggravating circumstance of repeated infringement in circumstances such as those of the present case, but it does make the permissibility of that practice subject to the condition that the decision establishing the second infringement and making a finding of repeated infringement on the part of the parent company must, at least, satisfy the precise requirements as to the statement of reasons which the Court lays down. It must be observed that, in so doing, the Court takes, as its position for analysing the situation, the stage at which the decision making a finding of repeated infringement and establishing the second infringement is adopted, rather than the stage at which the decision establishing the first infringement is adopted, as the General Court did in the judgment under appeal.

66.

We must examine, in the light of the foregoing submissions, the Commission’s first plea in law, by which it submits in essence that, contrary to the findings of the General Court, the parent company of a group of companies may be found to have committed a repeated infringement even though it has not been the subject of any previous penalties, provided that it is established that it formed a single economic unit with another company which has previously been penalised, and that it had the opportunity, while the second decision making a finding of repeated infringement was being adopted, to rebut the presumption that it did exercise a decisive influence over the previously penalised company.

67.

I would point out from the outset that it is clear that the judgment under appeal, which is within the third and final line of case-law developed by the General Court, in that it excludes in principle any finding of repeated infringement in circumstances such as those at issue here, is not compatible with the case-law of the Court of Justice.

68.

The errors of law committed by the General Court, which might justify the setting-aside of the judgment under appeal, do not mean, however, that the Commission’s appeal must be upheld or that the judgment of the General Court must be set aside, if the operative part of the judgment under appeal is shown to be well founded for other legal reasons. ( 51 )

69.

The General Court’s assessment to the effect that the Commission was not entitled to apply the aggravating circumstance of repeated infringement in relation to Eni appears to be justified, first of all, in the light of the requirements laid down by the Court of Justice in Eni v Commission ( 52 ) and Versalis v Commission. ( 53 ) It appears to be justified, in particular, in the light of the requirements flowing from the guarantee of the rights of defence of the parent company penalised for a repeated infringement in circumstances such as those at issue here, a point on which the Court of Justice has not yet had occasion to give a ruling.

70.

According to the judgment under appeal, it was not, in essence, possible to find that the parent company had committed a repeated infringement in the circumstances of the present case, that is to say in a situation where it was a subsidiary of that parent company which had been the subject of an initial penalty for infringement of the competition rules, without automatically infringing the parent company’s rights of defence. In such a situation, the parent company was not in a position, ‘at the time of the earlier infringement’, ( 54 ) to rebut the presumption that it exercised a decisive influence over its penalised subsidiary. The parent company’s inability to mount a defence lies in the fact that the decision establishing the first infringement had not been addressed to it, it had not been penalised for that infringement and it had not received a statement of objections in connection with that finding of infringement. ( 55 )

71.

According to the judgment under appeal, a legal person cannot be found to have committed a repeated infringement unless that person has previously been the subject of a penalty. Any finding of repeated infringement is therefore subject not only to the condition that two successful similar infringements must be attributed to the same undertaking but also to the condition that the same person must actually be penalised for those infringements. The concept of repeated infringement therefore requires that the same person must actually be penalised for two similar infringements in succession. ( 56 )

72.

The general approach to repeated infringement thus advocated by the General Court in the judgment under appeal is therefore, fundamentally, at direct odds with the findings of the Court of Justice in Groupe Danone v Commission. ( 57 ) It is, in any event, no longer consistent with the approach adopted by the Court of Justice in Eni v Commission ( 58 ) and Versalis v Commission. ( 59 )

73.

It is clear from those judgments that the finding of repeated infringement in a situation such as that at issue here cannot be ruled out in principle, provided that it is surrounded by the necessary guarantees and, in particular, made subject to compliance with a specific obligation to give reasons. It follows, more broadly, that the difficulties raised by such a finding, in particular as regards respect for the parent company’s rights of defence, have to be resolved not at the stage when the first infringement decision is adopted, as the General Court held, but at the stage when the second infringement decision is adopted, as the Commission has argued.

74.

The General Court therefore committed an error of law in ruling that the infringement established in Article 1 of the contested decision, committed by Eni, could not be regarded as a repeated infringement on Eni’s part, on the sole basis of the finding that, since it had not been penalised by the Polypropylene and PVC II decisions relied on by the Commission and had not had a statement of objections addressed to it in the context of the adoption of those decisions, Eni had not been in a position, at the time of the previous infringement, to put forward arguments to dispute the assertion that it formed an economic unit with the undertakings penalised under those decisions.

75.

The first limb of the first plea in law raised by the Commission is therefore well founded. Even so, however, the appeal does not have to be upheld if the judgment under appeal is justified on another legal basis, which it is, doubly so, in the present case.

76.

It must be pointed out first of all that it does not seem possible to take the view that the contested decision satisfies the requirements as to the statement of reasons laid down by the Court in Eni v Commission ( 60 ) and Versalis v Commission, ( 61 ) since it explains neither in what capacity nor, in particular, to what extent Eni was involved in the Polypropylene and PVC II decisions.

77.

After all, recitals 540 and 541 of the contested decision, cited by the General Court in paragraph 235 of the judgment under appeal, simply state that Eni must be regarded as a repeat offender and footnote No 517 points out in this regard that Anic, a subsidiary of the Eni group, had been found guilty of participating in the cartel established in the Polypropylene decision of 23 April 1986, and that EniChem had been found guilty of participating in the cartel established in the PVC II decision of 27 July 1994.

78.

Bearing in mind that the parties were invited at the hearing to present their views on those judgments, in so far as they related to the matter of repeated infringement, the Court of Justice may have it in mind, in keeping with those two judgments, to confirm the judgment of the General Court, with a substitution of grounds, since the Court of Justice has sufficient information at its disposal to allow it to conclude that the General Court’s assessment of the legality of the contested decision is, in any event, justified on the ground of an insufficient statement of reasons.

79.

It is my view, however, that the Court of Justice must seize the opportunity offered to it by the present cases to deepen its analysis of the legality of the Commission’s decisional practice by going beyond the issue of the statement of reasons already identified and addressing the more fundamental question, raised by that practice, of the guarantee of the rights of defence of a person considered to be a repeat offender.

80.

Although, for the purposes of EU competition law, a finding of repeated infringement on the part of a person does not necessarily imply, as the Court held in Groupe Danone v Commission, ( 62 ) that a fine has been imposed on that person in the past but simply that a finding of an infringement has been made in the past, it does imply, at the very least, that, at the start of the procedure that would culminate in his being penalised and found guilty of repeated infringement, that person was previously provided with reasoned information such that he was fully able to mount an effective defence in this regard.

81.

Such a requirement is all the more imperative in the context of applying competition law to groups of companies, where the Commission is contemplating aggravating the penalty imposed on a person, by reason of repeated infringement, on the basis not of a decision establishing a similar infringement previously committed by the same person, that is to say a fact ascertained in law and established by a final decision, but simply on the basis of the finding that a similar previous infringement was potentially attributable to him and could have been attributed to him, even though this was not established by a decision addressed to him.

82.

A finding of repeated infringement in circumstances such as those of the present case might thus be potentially permissible only if the Commission, in addition to satisfying the requirements as to the statement of reasons already identified by the Court in Eni v Commission ( 63 ) and Versalis v Commission, ( 64 ) observed a strict guarantee of the rights of defence of the company alleged to be a repeat infringer.

83.

The Commission must therefore, first of all, send the parent company a statement of objections specifically informing it of its intention to penalise it and to aggravate the penalty imposed on it by reason of repeated infringement, and explaining the precise basis on which and the reasons for which it is doing so. It is not therefore enough for the Commission simply to ‘mention’ the existence of a decision establishing the earlier infringement. On the contrary, where that decision penalises another company without being addressed to or even mentioning the parent company, it must, in addition, not only make clear that it intends to rely on the presumption that the parent company exercised a decisive influence over the penalised company in order to make a finding of repeated infringement on its part, but also specify the grounds which, in its view, sustain that presumption and the reasons why it considers it necessary to aggravate the penalty on it by reason of repeated infringement.

84.

It is only in those circumstances that the parent company, having been duly informed beforehand, will be in a position to rebut the presumption forming the basis of the finding of repeated infringement and thus mount an effective defence ahead of the adoption of the final decision imposing a penalty. That requirement is made all the more necessary by the fact that the parent company always faces objective difficulties in rebutting, sometimes years later, the presumption that it exercised decisive influence over the subsidiary that was held liable and penalised for the first infringement.

85.

It should be pointed out in this regard that these requirements are exactly the same as those which the Commission would have been obliged to satisfy if it had indeed attributed the first infringement to the parent company in its capacity as the company actually exercising a decisive influence over its penalised subsidiary. Put simply, in such a situation, those requirements do not have to be satisfied until later, when the attributability of the first infringement to the parent company is, as it were, activated.

86.

It should be noted that, as is clear from settled case-law, the principle of respect for the rights of the defence means that it cannot be considered lawful for the Commission to adopt a decision by which it imposes on an undertaking a fine for infringement of competition law without having previously sent to that undertaking a statement of the objections raised against it; given its importance as an essential procedural guarantee, the statement of objections must not only state unequivocally the legal person on whom fines may be imposed, which is to say that that person must be identified, ( 65 ) but also indicate in which capacity that legal person is called on to answer the allegations, and, therefore, be addressed to that person. ( 66 )

87.

In the present case, the Commission has stated in its written pleadings that the statement of objections drew its addressees’ attention to the repeated infringement. ( 67 )

88.

However, in circumstances such as those at issue here, the Commission cannot be considered to be released from its obligations by virtue of that mere reference. On the contrary, it was incumbent on it to specify, in the statement of objections, the reasons why it considered itself able to rely on the presumption that Eni exercised a decisive influence over the two subsidiaries penalised by the aforementioned decisions, as well as the grounds on which it intended to activate that presumption with a view to aggravating the penalty which it envisaged imposing on it.

89.

Compliance with those requirements was all the more essential given that Eni was entirely transparent in the context of the finding of the first infringements, in so far as the final decisions were neither addressed to it nor even referred to it and no mention was made even of the possibility that the infringements found to have been committed by its subsidiaries could be imputed to it.

90.

Consequently, notwithstanding the imperfections that vitiate the judgment under appeal, the General Court’s assessment to the effect that the Commission could not apply the aggravating circumstance of repeated infringement in relation to Eni must be confirmed, since the contested decision is in any event vitiated by an infringement of Eni’s rights of defence and an insufficient statement of grounds.

91.

In paragraphs 277 to 280 of the judgment under appeal, the General Court held in essence that the Commission could rely on the PVC II decision, by which EniChem had been found guilty of infringement, in order to make a finding of repeated infringement on the part of Polimeri Europa, now Versalis, and to increase the amount of the fine, which Eni was held to be jointly and severally liable to pay, in so far as Polimeri Europa was the economic successor to EniChem in relation to the chloroprene rubber business and, as such, liable for the second infringement committed by it during the period from 13 May 1993 to 31 December 2001, established in the contested decision.

92.

In paragraphs 281 and 282 of the judgment under appeal, on the other hand, the General Court held that the Commission could not rely on the Polypropylene decision in order to make a finding of repeated infringement on the part of Polimeri Europa, in so far as, in essence, Eni could not be classified as a repeat offender, for the reasons given in paragraphs 272 to 274 of the judgment under appeal and examined above. It therefore also declared the contested decision to be unlawful in this respect (paragraph 287 of the contested judgment), and it was on this basis that it decided to reduce the percentage increase of the fine imposed on the applicants from 60% to 50% (paragraph 367 of the judgment under the appeal).

93.

By their fifth plea in law, the appellants submit that the General Court committed an error of law in confirming that the aggravating circumstance of repeated infringement was applicable to Polimeri Europa, now Versalis, on the basis of the finding against EniChem in the PVC II decision. They contest the reasons given for the judgment, the application in this instance of the criterion of economic succession and the fact that the General Court made a finding of repeated infringement on bases different from those chosen by the Commission (first limb). They further consider that the General Court infringed the principle of proportionality by reducing the percentage increase of the fine from 60% to 50% (second limb) and committed an error of law in ordering Eni jointly and severally to pay the increase in the fine by reason of repeated infringement (third limb).

94.

The Commission submits that the various limbs of this fifth plea in law must be dismissed as unfounded.

95.

I take the view that, in so far as the second plea in law raised by the appellants in Case C‑123/13 P must be dismissed, ( 68 ) the various limbs of the fifth plea in law must, consequently, be dismissed also.

96.

In my view, the General Court, after providing a sufficient, although brief, statement of reasons, was able to take the view that, in the circumstances of the case, in which Versalis is the economic successor to EniChem in the context of a group of companies controlled by the same legal person, in this instance Eni, it is indeed the same legal person who is liable for the infringements established by the PVC II decision and the contested decision respectively. Otherwise, as the General Court held (paragraph 279 of the judgment under appeal), groups of companies would need only to transfer responsibility for the economic activity carried on by a company found guilty of infringing the competition rules to another company within the group in order systematically to evade any finding of repeated infringement. The argument that the General Court established the repeated infringement on bases different from those chosen by the Commission must, against that background, be dismissed as unfounded.

97.

By its second and third pleas in law, the Commission submits that the General Court committed several errors of law in its assessment of the application of the multiplier to Eni and Versalis.

98.

It takes the view first of all (second plea in law, concerning paragraph 326 of the judgment under appeal) that the General Court committed an error of law — more specifically, that it infringed the principle that the action is confined to the subject-matter as delimited in the application, Article 21 of the Statute of the Court of Justice and Articles 44(1) and 48(2) of its Rules of Procedure — in examining whether the application of a multiplier of 1.4 to Eni and Versalis was, by comparison with the multiplier applied to Dow, consistent with the principle of equality, when the applicants had relied on that principle at the very most only at the hearing.

99.

It considers next (third plea in law, concerning paragraphs 323 to 325 of the judgment) that the General Court committed an error of law in the interpretation and application of the principle of equal treatment in this case.

100.

The applicants claim that those two pleas in law should be dismissed.

101.

The second plea in law raised by the Commission must be dismissed as manifestly unfounded. The view cannot be taken that the General Court addressed of its own motion the complaint alleging failure to take proper account of the principle of equality, given that, in paragraph 106 of their application at first instance, the applicants were already complaining that the Commission had applied the multiplier to them but not to other undertakings. That same complaint is then reiterated and developed in paragraphs 56 and 57 of their reply at first instance, where the applicants explicitly submit that the Commission applied to them an increase four times greater than that applied to Dow. Finally, the applicants stated at the hearing that, in those circumstances, the increase imposed on them was contrary to the principle of equality (paragraphs 310 and 322 of the judgment under appeal).

102.

The Commission’s third plea in law must also be dismissed.

103.

It is true that the Court has already had occasion to point out that, in the context of calculating fines under Article 23(2) of Regulation No 1/2003, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers, since, in exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the EU competition rules are fully effective. ( 69 )

104.

The Court has also held, however, that, when the amount of the fine is determined, there cannot be any discrimination between the undertakings which have participated in an agreement by the application of different methods of calculation. ( 70 ) It follows more broadly from case-law that the differentiated treatment of undertakings in the same situation is permissible only if there are objective reasons for so doing. ( 71 )

105.

What the Commission is contesting in this instance, however, is less the principle per se of applying the principle of equality than the manner in which the General Court actually applied it in this case. It submits more specifically that the General Court compared the respective total turnovers of Eni and Dow which the Commission had used for the purposes of calculating the multiplier, when it should have compared the ratio between the total turnover of the two groups and the turnover from the sale of the products forming the subject of the cartel, in the order of 3000:1 for Eni and 1000:1 for Dow.

106.

It must be pointed out, however, that the General Court’s assessment in this regard is based exclusively on the grounds contained in recital 584 of the contested decision (see paragraphs 308 and 323 to 325 of the judgment under appeal). That recital refers only to the groups’ total turnover. The General Court was therefore able to conclude that there had been an infringement of the principle of equality in this case without committing an error of law, since the Commission had provided no objective reason justifying the difference in treatment between Eni and Dow.

107.

By their sixth plea in law, the appellants consider, as they submit in the context of their first and second pleas in law, that, in so far as they cannot be held liable for the infringements attributed to them, the maximum amount of the fine provided for in Article 23 of Regulation No 1/2003 should have been applied to the turnover of [confidential] only and should therefore have been fixed at EUR 82 million, that is to say 10% of its turnover of EUR 820 million for 2006.

108.

Since, as explained in points 24 and 27 of this Opinion, the appellants’ first and second pleas in law must be dismissed as unfounded, there is in my view no need to rule on the sixth plea in law.

109.

By their seventh plea in law, the appellants submit in essence that the General Court unlawfully refrained from exercising the judicial review incumbent upon it in relation to the Commission’s refusal to reduce the fine imposed on them in accordance with the Commission notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases, ( 72 ) or even in accordance with paragraph 29 of the Guidelines on the method of setting fines. By taking the view, in essence, that the information furnished by [confidential] and Versalis was of no significant added value, the General Court committed an error of assessment and gave insufficient reasons for its judgment.

110.

The Commission considers that that plea in law must be dismissed as inadmissible, inasmuch as the applicants merely reiterate the arguments advanced at first instance and seek a new assessment of the facts. It must in any event be dismissed as unfounded, since the General Court did review the assessment carried out by the Commission in this regard, even though that review was limited given the margin of discretion enjoyed by the Commission in such matters.

111.

The line of argument advanced by the applicants on appeal very substantially reproduces that assessed by the General Court in the judgment under appeal (paragraphs 350 to 365), with the result that this plea in law must for that reason be dismissed as inadmissible.

112.

By their eighth plea in law, the appellants submit that the amount of the fine imposed on them is unfair, inappropriate and disproportionate, and that the General Court omitted to exercise the power of unlimited jurisdiction conferred on it by Article 31 of Regulation No 1/2003. More specifically, the General Court disregarded their right to full and effective legal protection in confining its review to the legality of the contested decision, without assessing the circumstances of the case.

113.

As the Court has already had occasion to rule, it is not for it, when ruling on an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements by them of the competition rules. ( 73 )

114.

Consequently, in so far as the applicants’ eighth plea in law simply calls into question the proportionality of the fine imposed on them and seeks to obtain a re-examination of findings of fact which the Court of Justice does not have jurisdiction to undertake in the context of an appeal, ( 74 ) it must be declared inadmissible.

115.

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

116.

Since I am of the view that both appeals must be dismissed and the parties have each applied for costs to be awarded against the other in the two cases, I propose, in accordance with Article 184(1) in conjunction with Article 137 of the Rules of Procedure, that each of the parties be ordered to pay the costs in the appeal in which they have been unsuccessful.

117.

In the light of the foregoing considerations, I propose that the Court: