Competition Agreements, decisions and concerted practices Decision finding an infringement of Article 81 EC Fines Gravity and duration of the infringement Aggravating circumstances Proportionality Obligation to state the reasons on which the decision is based Actual impact on the market Attenuating circumstances Repeated infringement Market sharing and price fixing Principle that penalties must fit the offence Market for monochloroacetic acid Deterrent effect Imputability of the unlawful conduct Role of follower
Sumário
Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009.
Arkema SA v Commission of the European Communities.
Competition - Agreements, decisions and concerted practices - Market for monochloroacetic acid - Decision finding an infringement of Article 81 EC - Market sharing and price fixing - Imputability of the unlawful conduct - Principle that penalties must fit the offence - Obligation to state the reasons on which the decision is based - Fines - Proportionality - Gravity and duration of the infringement - Deterrent effect - Actual impact on the market - Attenuating circumstances - Role of follower - Aggravating circumstances - Repeated infringement.
Case T-168/05.
Texto da decisão
Judgment of the Court of First Instance (Seventh Chamber) of 30 September 2009 – Arkema v Commission
(Case T-168/05)
Competition – Agreements, decisions and concerted practices – Market for monochloroacetic acid – Decision finding an infringement of Article 81 EC – Market sharing and price fixing – Imputability of the unlawful conduct – Principle that penalties must fit the offence – Obligation to state the reasons on which the decision is based – Fines – Proportionality – Gravity and duration of the infringement – Deterrent effect – Actual impact on the market – Attenuating circumstances – Role of follower – Aggravating circumstances – Repeated infringement
1. Competition – Agreements, decisions and concerted practices – Undertaking – Concept – Economic unit – Attribution of infringements – Parent company and subsidiaries – Joint and several liability of the companies concerned – Infringement of the principle that penalties must fit the offence – None (Art. 81(1) EC) (see paras 65-66, 80, 97-99, 105-108, 129)
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 – Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary – Applicability of the presumption where the parent company holds nearly all the capital of the subsidiary (Arts 81 EC and 82 EC) (see paras 67-70, 74-77, 81-82, 100)
3. 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 or part-owned subsidiaries (Arts 81 EC and 82 EC) (see paras 89-92, 115)
4. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules (Arts 81 EC, 82 EC and 253 EC) (see paras 121, 127)
5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 3) (see paras 148-149, 153)
6. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market – Criteria for assessment (Commission Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A, first para.) (see paras 162-165)
7. Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size and global resources of the fined undertaking – Relevance – Application of a multiplier to the starting amount – Breach of principle of proportionality – None (Council Regulations Nos 17, Art. 15, and 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 1A) (see paras 178-183, 206-207)
8. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Increase in the starting amount of the fine – Taking into account of variations in the intensity of the infringement – Not included (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1B) (see paras 187-189)
9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Change of control of a repeatedly infringing company taking place between the two infringements – Application of the increase in the fine’s amount for repeat infringement only to the subsidiary and not to the company controlling it at the time the Commission’s decision was adopted – Lawfulness (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03) (see paras 200-205)
Re:
| APPLICATION for, primarily, annulment of Article 1(d), Article 2(c) and Article 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case No COMP/E-1/37.773 – MCAA) and, in the alternative, request to amend Article 2(c) and (d) of that decision. |
Operative part
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders Arkema SA to pay the costs. |