Judgments nº T-566/08 of The General Court, September 13, 2013

• Resolution Date: September 13, 2013
• Issuing Organization: The General Court
• Decision Number: T-566/08

(Competition – Agreements, decisions and concerted practices – Market for paraffin waxes – Market for slack wax – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Proof of the existence of the cartel – Concept of single and continuous infringement – Duration of the infringement – Interruption of the infringement – 2006 Guidelines on the method of setting fines – Equal treatment – Presumption of innocence – Imputability of the unlawful conduct – Liability of a parent company for the infringements of the competition rules committed by its subsidiaries – Decisive influence exercised by the parent company – Presumption in the case of 100% shareholding – Proportionality – Rounding-up method – Unlimited jurisdiction)

In Case T‑566/08,

Total Raffinage Marketing, established in Puteaux (France), represented by A. Vandencasteele, C. Falmagne, C. Lemaire and S. Naudin, lawyers,

applicant,

v

European Commission, represented by F. Castillo de la Torre and A. Biolan, acting as Agents, and by N. Coutrelis, lawyer,

defendant,

APPLICATION, primarily, for annulment in part of Commission 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 a reduction in the amount of the fine imposed on the applicant,

THE GENERAL COURT (Fourth Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and K. O’Higgins, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 20 October 2010,

gives the following

Judgment

Facts giving rise to the dispute

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 applicant, Total Raffinage Marketing SA (formerly Total France SA), and its parent company, owning 100% of its capital, Total SA, had, together with other undertakings, infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) by participating in an agreement on the candle wax market in the EEA and on the German market for slack wax.

2 The addressees of the contested decision are, in addition to the applicant and its parent company Total SA (together ‘the Total group’ or ‘Total’), 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., Repsol YPF Lubricantes y Especialidades SA, Repsol Petróleo SA and Repsol YPF SA (together ‘Repsol’), Sasol Wax GmbH, Sasol Wax. International AG, Sasol Holding in Germany GmbH and Sasol Ltd (together ‘Sasol’), Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Ltd, The Shell Petroleum Company Ltd, Shell Petroleum NV and The Shell Transport and Trading Company Ltd (together ‘Shell’) and RWE Dea AG and RWE AG (together ‘RWE’) (recital 1 to the contested decision).

3 Paraffin waxes are manufactured in refineries from crude oil. They are used for the production of a variety of products such as candles, chemicals, tyres and automotive products as well as in the rubber, packaging, adhesive and chewing-gum industries (recital 4 to 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 to 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 the non-imposition or reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) (recital 72 to the contested decision).

6 On 28 and 29 April 2005, the Commission, 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], conducted unannounced inspections at the premises of ‘H&R /Tudapetrol’, ENI, MOL and also the premises of companies in the Sasol, ExxonMobil, Repsol and Total groups (recital 75 to the contested decision).

7 On 29 May 2007, the Commission sent a statement of objections to the companies referred to at paragraph 2 above, including Total France (recital 85 to the contested decision). By letter of 14 August 2007, Total France replied to the statement of objections.

8 On 10 and 11 December 2007, the Commission held a hearing in which Total France took part (recital 91 to 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 relating to price-fixing and the disclosure of sensitive business information affecting paraffin waxes (‘the main aspect of the infringement’). As regards RWE (later Shell), ExxonMobil, MOL, Repsol, Sasol and Total, the infringements relating to paraffin waxes also concerned customer-sharing or market-sharing (‘the second aspect of the infringement’). Furthermore, the infringement committed by RWE (subsequently Shell), ExxonMobil, Sasol and Total, also related to slack wax sold to end-customers on the German market (‘the slack wax aspect of the infringement’) (recitals 2, 95 and 328 to and Article 1 of the contested decision).

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

11 According to the contested decision, employees of Total France had participated directly in the infringement throughout its entire duration. The Commission therefore held Total France liable for its participation in the cartel (recitals 555 and 556 to the contested decision). In addition, Total France was, between 1990 and the end of the infringement, directly or indirectly owned as to more than 98% by Total SA. The Commission considered that it could be presumed on that basis that Total SA exercised decisive influence over the conduct of Total France, as the two companies were part of the same undertaking (recitals 557 to 559 to the contested decision). In answer to an oral question at the hearing concerning the imputation of liability to its parent company, the applicant referred to all the information communicated by Total SA in the related Case T‑548/08 Total SA v Commission, delivered today. In that case, Total SA stated, in answer to a written question from the Court, that Total France was directly or indirectly wholly owned by it during the relevant period.

12 The amount of the fines imposed in the present case was 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’), which was in force when the statement of objections was notified to the companies referred to at paragraph 2 above.

13 In the applicant’s case, first of all, the Commission took into account the value of annual sales on the relevant markets. That represented EUR 31 133 865 (including EUR 1 993 620 for slack wax).

14 Next, with respect to the gravity of the infringement, the Commission took into account 18% of the annual value of sales of paraffin waxes and 15% of the annual value of sales for slack wax. The amounts thus obtained were multiplied, in order to take into account the duration of the infringement, by a factor of 13 for paraffin waxes and 7 for slack wax. Likewise, in application of point 25 of the 2006 Guidelines, the Commission included in the basic amount an additional amount (‘the entry fee’) representing 18% of the value of annual sales of paraffin waxes and 15% of the annual value of sales of slack wax. The Commission thus arrived at a basic amount of the fine of EUR 75 390 000 for Total (recital 671 to the contested decision).

15 The Commission did not find any aggravating circumstance or mitigating circumstance in the applicant’s case and the basic amount of the fine was therefore not adjusted on that basis. However, for deterrence, in the light of the significant worldwide turnover of the Total group, in application of point 30 of the 2006 Guidelines, the Commission fixed a coefficient of 1.7. Thus, by multiplying the basic amount by that coefficient, the Commission arrived at an adjusted basic amount of the fine of EUR 128 163 000.

16 As no reduction of the amount of the fine was made under the Commission notice on immunity from and the reduction of fines in cartel cases (OJ 2002 C 45, p. 3), the adjusted basic amount of EUR 128 163 000 was the total amount of the fine (recital 785 to the contested decision).

17 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 of the EEA Agreement 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...