Judgments nº T-541/08 of The General Court, July 11, 2014

• Resolution Date: July 11, 2014
• Issuing Organization: The General Court
• Decision Number: T-541/08

(Competition — Agreements, decisions and concerted practices — Paraffin waxes market — Slack wax market — Decision finding an infringement of Article 81 EC — Price fixing and market sharing — Liability of a parent company for the infringements of the competition rules committed by its subsidiaries and by a joint venture owned in part by it — Decisive influence exercised by the parent company — Presumption where the parent company holds 100% of the shares — Succession of undertakings — Proportionality — Equal treatment —2006 Guidelines on the method of setting fines — Aggravating circumstances — Role of leader — Setting a limit on the fine — Unlimited jurisdiction)

In Case T‑541/08,

Sasol, established in Rosebank (South Africa),

Sasol Holding in Germany GmbH, established in Hamburg (Germany),

Sasol Wax International AG, established in Hamburg,

Sasol Wax GmbH, established in Hamburg,

represented by W. Bosch, U. Denzel, C. von Köckritz, lawyers,

applicants,

v

European Commission, represented by F. Castillo de la Torre and R. Sauer, acting as Agents, and by M. Gray, Barrister,

defendant,

APPLICATION, primarily, for annulment in part of the Commission’s decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle waxes) and, in the alternative, for annulment or reduction of the fine imposed on the applicants,

THE GENERAL COURT (Third Chamber),

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

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 3 July 2013,

gives the following

Judgment

Background to the dispute

1. Administrative procedure and adoption of the contested decision

   1 By Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes) (‘the contested decision’), the Commission of the European Communities found that the applicants, Sasol Wax GmbH, Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol (which is hereinafter referred to as ‘Sasol Ltd’) (the applicants together ‘Sasol’), with other undertakings, infringed Article 81(1) EC and Article 53(1) of the EEA Agreement, by participating in a cartel concerning the paraffin waxes market in the EEA and the German slack wax market.

   2 The addressees of the contested decision are, as well as Sasol, the following companies: ENI SpA; Esso Deutschland GmbH, Esso Société anonyme française, ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil Corp. (together ‘ExxonMobil’); H&R ChemPharm GmbH, H&R Wax Company Vertrieb GmbH and Hansen & Rosenthal KG (together ‘H&R’); Tudapetrol Mineralölerzeugnisse Nils Hansen KG; MOL Nyrt. (‘Mol’); Repsol YPF Lubricantes y Especialidades SA, Repsol Petróleo SA and Repsol YPF SA (together ‘Repsol’); Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, the Shell International Petroleum Company Ltd, the Shell Petroleum Company Ltd, Shell Petroleum NV and the Shell Transport and Trading Company Ltd (together ‘Shell’); RWE Dea AG and RWE AG (together ‘RWE’); and also Total SA and Total France SA (together ‘Total’) (recital 1 in the preamble to the contested decision).

   3 Paraffin waxes are manufactured in refineries from crude oil. They are used for the production of products such as candles, chemicals, tyres and automotive products as well as in the rubber, packaging, adhesive and chewing-gum industries (recital 4 of the contested decision).

   4 Slack wax is the raw material required for the manufacture of paraffin waxes. It is produced in refineries as a by-product in the manufacture of base oils from crude oil. It is also sold to end-customers, to producers of particle boards for instance (recital 5 of the contested decision).

   5 The Commission began its investigation after Shell Deutschland Schmierstoff informed it, by letter of 17 March 2005, of the existence of a cartel and submitted an application to it for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) (recital 72 of the contested decision).

   6 On 28 and 29 April 2005, the Commission carried out, pursuant to Article 20(4) 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), on-site inspections at the premises of ‘H&R/Tudapetrol’, ENI, MOL and also at those of the companies in the Sasol, ExxonMobil, Repsol and Total groups (recital 75 of the contested decision).

   7 Between 25 and 29 May 2007, the Commission sent a statement of objections to each of the companies listed in paragraph 2 above and thus also to the applicants (recital 85 of the contested decision). By letter of 13 August 2007, Sasol Wax and Sasol Wax International replied jointly to the statement of objections. By another letter of the same date, Sasol Holding in Germany and Sasol Ltd also replied jointly to the statement of objections.

   8 On 10 and 11 December 2007, the Commission held a hearing in which the applicants took part (recital 91 of the contested decision).

   9 In the contested decision, in the light of the evidence available to it, the Commission considered that the addressees, which constituted the majority of the producers of paraffin waxes and slack wax in the EEA, had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the EEA territory. That infringement consisted in agreements or concerted practices aimed at price fixing, and exchanging and disclosing commercially-sensitive information affecting paraffin waxes (‘the principal part of the infringement’). In the case of RWE (later Shell), ExxonMobil, MOL, Repsol, Sasol and Total, the infringement affecting paraffin waxes also consisted of customer and/or market allocation (‘the second part of the infringement’). Furthermore, the infringement committed by RWE, ExxonMobil, Sasol and Total, also related to slack wax sold to end-customers on the German market (‘the slack-wax part of the infringement’) (recitals 2, 95 and 328, and Article 1 of the contested decision).

   10 The unlawful practices took shape at anti-competitive meetings called ‘technical meetings’ or sometimes ‘Blauer Salon’ meetings of the participants and at ‘slack wax meetings’ devoted specifically to questions relating to slack wax.

   11 The fines imposed in this case were calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’), in force at the time the statement of objections was notified to the companies in paragraph 2 above.

   12 The contested decision includes, in particular, the following provisions:

   ‘Article 1

   The following undertakings have infringed Article 81(1) [EC] and — from 1 January 1994 — Article 53 [EEA] by participating, for the periods indicated, in a continuing agreement and/or concerted practice in the paraffin waxes sector in the common market and, as of 1 January 1994, within the EEA:

   …

   Sasol Wax GmbH: from 3 September 1992 to 28 April 2005;

   Sasol Wax International AG: from 1 May 1995 to 28 April 2005;

   Sasol Holding in Germany GmbH: from 1 May 1995 to 28 April 2005;

   Sasol [Ltd]: from 1 May 1995 to 28 April 2005;

   …

   For the following undertakings, the infringement also includes slack wax sold to end-customers on the German market for the periods indicated:

   …

   Sasol Wax GmbH: from 30 October 1997 to 12 May 2004;

   Sasol Wax International AG: from 30 October 1997 to 12 May 2004;

   Sasol Holding in Germany GmbH: from 30 October 1997 to 12 May 2004;

   Sasol [Ltd]: from 30 October 1997 to 12 May 2004;

   …

   Article 2

   For the infringement referred to in Article 1, the following fines are imposed:

   ENI SpA: EUR 29 120 000;

   Esso Société Anonyme Française: EUR 83 588 400,

   of which jointly and severally with

   ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil [Corp.]: for EUR 34 670 400, of which jointly and severally with Esso Deutschland GmbH for EUR 27 081 600;

   Tudapetrol Mineralölerzeugnisse Nils Hansen KG: EUR 12 000 000;

   Hansen & Rosenthal KG jointly and severally with H&R Wax Company Vertrieb GmbH: EUR 24 000 000,

   of which jointly and severally with

   H&R ChemPharm GmbH for EUR 22 000 000;

   MOL Nyrt.: EUR 23 700 000;

   Repsol YPF Lubricantes y Especialidades SA jointly and severally with Repsol Petróleo SA and Repsol YPF SA: EUR 19 800 000;

   Sasol Wax GmbH: EUR 318 200 000,

   of which jointly and severally with

   Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol [Ltd] for EUR 250 700 000;

   Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited, the Shell Petroleum Company Limited, Shell Petroleum NV and the Shell Transport and Trading Company [Ltd]: EUR 0;

   RWE-Dea AG jointly and severally with RWE AG: EUR 37 440 000;

   Total France SA jointly and severally with Total SA: EUR 128 163 000.’

2. The structure of the Sasol group and Vara and the imputation of liability to the parent companies in the contested decision

   13 In recital 449 of the contested decision, the Commission first identified, as regards the Sasol group, the company directly responsible for the infringement. Thus it found that persons attending the technical meetings were employed by Hans-Otto Schümann GmbH & Co. KG (‘HOS’) from the beginning of the infringement, on 3 September 1992, until 30 April 1995. From 1 May 1995 until 31 December 2002, it was Schümann Sasol GmbH & Co. KG, which, in 2000, became Schümann Sasol GmbH (together ‘Schümann Sasol’). From 1 January 2003 onwards, the employer was Sasol Wax.

   14 Consequently, in recital 452 of the contested decision, Sasol Wax, the successor of HOS and...