ENI SpA v European Commission.

• Jurisdiction: European Union
• Celex Number: 62011CJ0508
• ECLI: ECLI:EU:C:2013:289
• Court: Court of Justice (European Union)
• Docket Number: C‑508/11
• Date: 08 May 2013
• Procedure Type: Recurso de anulación

JUDGMENT OF THE COURT (First Chamber)

8 May 2013 (*1 )

‛Appeals — Competition — Agreements, decisions and concerted practices — Butadiene rubber and emulsion styrene butadiene rubber market manufactured by emulsion polymerisation — Attributability of unlawful conduct of subsidiaries to their parent companies — Presumption of the actual exercise of a decisive influence — Obligation to state reasons — Gravity of the infringement — Multiplier for deterrence — Actual impact on the market — Aggravating circumstances — Repeated infringements’

In Case C-508/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 September 2011,

Eni SpA, established in Rome (Italy), represented by G.M. Roberti and I. Perego, avvocati,

appellant,

the other party to the proceedings being:

European Commission, represented by V. Di Bucci, G. Conte and M.L. Malferrari, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, M. Berger (Rapporteur), A. Borg Barthet, E. Levits and J.-J. Kasel, Judges,

Advocate General: Y. Bot,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 9 January 2013,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Eni SpA (‘Eni’) asks the Court to set aside the judgment of the General Court of the European Union in Case T-39/07 Eni v Commission [2011] ECR II-4457 (‘the judgment under appeal’), by which that Court dismissed in part its action seeking annulment of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Articles 81 EC and 53 of the EEA Agreement (Case COMP/F/38.638 – butadiene rubber and emulsion styrene-butadiene rubber) (‘the contested decision’), or, in the alternative, to annul or reduce the fine imposed on it.

2 The European Commission has cross-appealed, seeking the setting aside of the judgment under appeal in so far as it annulled the contested decision as regards the finding of aggravating circumstances, namely repeated infringements, and consequently reduced the amount of the fine.

Background to the dispute and the contested decision

3 On 7 June 2005, the Commission instituted a proceeding under Article 81 EC and Article 53 of the European Economic Area Agreement (‘the EEA Agreement’), concerning the market in butadiene rubber (BR) and emulsion styrene-butadiene rubber (ESBR), synthetic rubbers essentially used in the production of tyres. It sent an initial Statement of Objections, inter alia, to Eni, Polimeri Europa SpA (now Versalis SpA; ‘Versalis’), its 100%-owned subsidiary, and Syndial SpA (formerly EniChem SpA; ‘Syndial’), another undertaking in the Eni group.

4 On 6 April 2006, the Commission adopted a second Statement of Objections. After having held a hearing on 22 June 2006, the Commission decided to close the proceeding, particularly as regards Syndial.

5 The administrative procedure led, on 29 November 2006, to the adoption of the contested decision. Under Article 1 of that decision, Eni, Versalis and the other addressees of the contested decision, namely Bayer AG, The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH, Dow Europe, Shell Petroleum NV, Shell Nederland BV, Shell Nederland Chemie BV, Unipetrol a.s., Kaučuk a.s. and Trade-Stomil sp. z o.o., had infringed Article 81 EC and Article 53 of the EEA Agreement by participating, for the periods indicated, in a single and continuous infringement by which they agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers in the BR and ESBR sectors, so far as Eni is concerned, from 20 May 1996 to 28 November 2002.

6 During that period, according to recital 26 et seq. to the contested decision, the business in the relevant products within the Eni group was initially carried out by EniChem Elastomeri srl (‘EniChem Elastomeri’), an undertaking indirectly controlled by Eni through its subsidiary EniChem SpA. On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA, of which Eni controlled 99.97%. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including its BR and ESBR business) to Versalis. Eni has had direct and full control of Versalis since 21 October 2002.

7 With regard to the fine imposed by the Commission in its contested decision, it was fixed according to the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’).

8 Thus, the Commission took the view that the infringement at issue could be described as ‘very serious’ and first set the starting amount for calculating the fine, applying differential treatment to each of the undertakings concerned on the basis of their sales of BR and ESBR for 2001. With regard to the companies owned by Eni, referred to in recital 36 to the contested decision (‘EniChem’), the sales figures of BR and ESBR amounted to EUR 164 902 million in 2001. That amount of sales resulted in EniChem being placed in the first category of undertakings selling BR and ESBR and involved in the infringement in question. On that basis, the Commission set the starting amount for the fine at EUR 55 million for Eni.

9 Next, the Commission applied multipliers for deterrence, scaled according to the worldwide turnover achieved by the undertakings concerned during 2005. Taking the view that no multiplier for deterrence should be applied in respect of Trade-Stomil sp. z o.o. (turnover EUR 38 million) or Kaučuk a.s. (turnover EUR 2.718 billion), it applied multipliers of 1.5 in respect of Bayer AG (turnover EUR 27.383 billion), 1.75 in relation to The Dow Chemical Company, Dow Deutschland Inc., Dow Deutschland Anlagengesellschaft mbH and Dow Europe (EUR 37.221 billion), 2 in relation to Eni and Versalis (EUR 73.738 billion) and 3 in relation to Shell Petroleum NV, Shell Nederland BV and Shell Nederland Chemie BV (EUR 246.549 billion).

10 In addition, as regards Eni and Versalis, that amount was increased by 65% on the ground that those undertakings had been participating in the infringement in question for six years and six months.

11 Finally, taking the view that Eni has already been the addressee of two earlier decisions finding infringements of European Union competition law, namely Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article [81 EC] (IV/31.149 – Polypropylene) (OJ 1986 L 230, p. 1; ‘the Polypropylene decision’) and Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article [81 EC] (IV/31.865 – PVC) (OJ 1994 L 239, p. 14; ‘the PVC II decision’), the Commission increased the basic amount of the fine applied to Eni by 50% for repeated infringements.

12 Consequently, in Article 2(c) of the contested decision, the Commission imposed a fine of EUR 272.25 million on Eni and its subsidiary Versalis, jointly and severally.

The action before the General Court and the judgment under appeal

13 By application lodged at the Registry of the General Court on 16 February 2007, Eni brought an action seeking the annulment of the contested decision and, in the alternative, the annulment or reduction of the fine imposed on it. It raised two pleas in law in support of its claim.

14 By its first plea, Eni complained of the fact that the Commission held it liable for the infringement. That first plea was divided into four parts. In the first part, Eni maintained that the Commission applied an incorrect criterion when assessing the liability of a parent company. In the second part, Eni submitted that the Commission wrongly found that it was strictly liable. In the third part, Eni stated that it had provided, during the administrative procedure, evidence which should have led the Commission to consider that it had not exercised any influence over the commercial policies of Syndial and Versalis. In the fourth part, Eni stated that the Commission had infringed the principle of limited liability of capital companies and the general principles governing liability.

15 By its second plea, Eni maintained that the Commission incorrectly set the amount of the fine. That plea consisted of three parts. In the first part, Eni contested the application of a multiplier for deterrence. In the second part, it considered that the Commission had committed an error by finding the aggravating circumstance of repeated infringement. In the third part, it claimed that the Commission should have taken into account the exclusion of Syndial when calculating the fine.

16 In its judgment, the General Court recalled, in essence, with regard to the first part of the first plea in law, that ‘there is a rebuttable presumption that a parent company which has a 100% shareholding in its subsidiary exercises a decisive influence over the conduct of its subsidiary’ and that ‘the imputation of the infringement to the parent company is a power that is left to the Commission’s discretion’, which is not bound by the Commission’s previous practice in taking decisions in that regard (paragraphs 63 and 64 of the judgment under appeal).

17 With regard to that previous practice in taking decisions, the Commission ‘provided an adequate explanation of the reasons why it had decided to impute to Eni the...