Corte di giustizia UE/2013

62011CJ0679_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑679/11 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 23 December 2011, [OSCURATO:PERSONA]., established in Morrisville ([OSCURATO:PERSONA]), represented by M. Odriozola and A. Vide, abogados, appellant, the other party to the proceedings being: [OSCURATO:PERSONA], represented by F. Castillo de la Torre, E. [OSCURATO:PERSONA], J. Bourke and C. [OSCURATO:PERSONA], acting as Agents, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of J. Malenovský, President of the [OSCURATO:PERSONA], U. Lõhmus (Rapporteur) and M. Safjan, Judges, [OSCURATO:PERSONA]: P. Mengozzi, Registrar: L. [OSCURATO:PERSONA], [OSCURATO:PERSONA], having regard to the written procedure and further to the hearing on 10 January 2013, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1. By its appeal, [OSCURATO:PERSONA]. (‘AOI’), formerly [OSCURATO:PERSONA]. (‘[OSCURATO:PERSONA]’), requests that the [OSCURATO:PERSONA] set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 October 2011 in [OSCURATO:PERSONA] T‑41/05 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑7101 (‘the judgment under appeal’), by which the [OSCURATO:PERSONA] reduced the part of the fine imposed on Agroexpansión SA (‘Agroexpansión’) by [OSCURATO:PERSONA] C(2004) 4030 final of 20 October 2004 relating to a proceeding under [OSCURATO:PERSONA] 81(1) [EC] ([OSCURATO:PERSONA] COMP/C.38.238/B.2 - Raw tobacco - Spain) (‘the contested decision’) and dismissed the action brought by [OSCURATO:PERSONA] against that decision for the remainder. 2. [OSCURATO:PERSONA] has brought a cross-appeal against the judgment under appeal whereby the [OSCURATO:PERSONA] requests that the [OSCURATO:PERSONA] set aside that judgment in so far as the [OSCURATO:PERSONA] applied, to the part of the fine imposed on Agroexpansión, for payment of which AOI was jointly and severally liable, the same further reduction of 5% as the [OSCURATO:PERSONA] granted to Agroexpansión, for its cooperation, in the judgment of 12 October 2011 in [OSCURATO:PERSONA] T‑38/05 Agroexpansión v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑7005. Background to the dispute and the contested decision 3. Agroexpansión, Compañía española de tabaco en rama SA (‘Cetarsa’), [OSCURATO:PERSONA] SL (‘Taes’) and [OSCURATO:PERSONA] SA (‘WWTE’) are four undertakings engaged in the first processing of raw tobacco in Spain (together, ‘the processors’). [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’), which also processes raw tobacco and which is an Italian company in the same group as Taes, was the principal purchaser of that product on the Spanish market. 4. Agroexpansión was originally a family business. On 18 November 1997 all its shares were purchased by [OSCURATO:PERSONA] BV (‘[OSCURATO:PERSONA]’). At that time [OSCURATO:PERSONA] belonged to the [OSCURATO:PERSONA] group of companies, which had been acquired by [OSCURATO:PERSONA] in April 1997. AOI is the result of a merger, carried out in May 2005, of [OSCURATO:PERSONA] and the American company [OSCURATO:PERSONA]. 5. On 3 and 4 October 2001 the [OSCURATO:PERSONA] carried out inspections pursuant to [OSCURATO:PERSONA] 14 of [OSCURATO:PERSONA] 17 of 6 February 1962, First regulation implementing Articles [81 EC] and [82 EC] (OJ 1962, [OSCURATO:PERSONA], 1959-1962 (I), p. 87) at the premises of, among others, Agroexpansión, in order to check information that the processors and the Spanish producers of raw tobacco had infringed [OSCURATO:PERSONA] 81 EC. 6. On 11 December 2003 the [OSCURATO:PERSONA] initiated the procedure in the present case and adopted a statement of objections, which it addressed to 20 undertakings or associations, including the processors, [OSCURATO:SOCIETA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. 7. On 20 October 2004 the [OSCURATO:PERSONA] adopted the contested decision which relates to, inter alia, a horizontal cartel entered into and implemented on the Spanish raw tobacco market by the processors and [OSCURATO:SOCIETA]. 8. According to the [OSCURATO:PERSONA]’s findings, the object of that cartel was to fix each year, in the period from 1996 to 2001, the average delivery price for each variety and grade of raw tobacco and to share out the quantities of each variety of raw tobacco that each of the processors could purchase from the producers. Between 1999 and 2001 the processors and [OSCURATO:SOCIETA] also agreed price brackets per quality grade for each raw tobacco variety as well as average minimum prices per producer and producer group. 9. In the contested decision, the [OSCURATO:PERSONA] held that that cartel constituted a single and continuous infringement of [OSCURATO:PERSONA] 81(1) EC, attributed liability for the cartel to, among others, the processors and [OSCURATO:SOCIETA] and ordered those undertakings immediately to bring that infringement to an end and henceforward to refrain from any restrictive practice with the same or equivalent object or effect. [OSCURATO:PERSONA] 3 of that decision the [OSCURATO:PERSONA] imposed fines on those undertakings and on the producers’ representatives. 10. It was also stated in the contested decision that [OSCURATO:PERSONA] was held jointly and severally liable for payment of the fine imposed on Agroexpansión, as were the three parent companies of WWTE in respect of the fine imposed on WWTE. On the other hand, [OSCURATO:PERSONA] was not held to be liable with regard to the fine imposed on Agroexpansión. As regards the fines imposed on Taes and [OSCURATO:SOCIETA], [OSCURATO:PERSONA]. Inc. (‘[OSCURATO:PERSONA]’), the parent company of which those two undertakings were wholly owned subsidiaries, and [OSCURATO:PERSONA]. (‘[OSCURATO:PERSONA]’), which owned the entire share capital of [OSCURATO:PERSONA], were also not held to be jointly and severally liable. 11. As regards the persons to whom the contested decision was addressed, the [OSCURATO:PERSONA] stated, in recitals 372, 375 and 376 of the contested decision: ‘(372) According to settled case-law, where the subsidiary is wholly owned by the parent company, it can legitimately be assumed that the parent company in fact exercises decisive influence over its subsidiary’s conduct .... such an assumption can be further strengthened by specific factors arising in individual cases. ... (375) In the present case, three of the four Spanish processors of raw tobacco are controlled (to the extent of 100% or 90%) by US multinationals. There are other factual elements that confirm the presumption that the conduct of Agroexpansión and WWTE has to be ascribed to their respective parent companies. In these cases, the two companies – the parent company and the subsidiary – must be regarded as being jointly responsible for the infringements established in this decision. (376) On the other hand, following the issuing of the Statement of Objections and the hearing of the parties, it has become apparent that the evidence in the file could not warrant a similar conclusion in respect of [OSCURATO:PERSONA][’s] … and [OSCURATO:PERSONA] [[OSCURATO:PERSONA]. Inc.’s] shareholdings in Taes and [OSCURATO:SOCIETA]. In fact, apart from the corporate link between the parents and their subsidiaries, there is no indication in the file of any material involvement of [OSCURATO:PERSONA] … and [OSCURATO:PERSONA] in the facts which are being considered in this decision. It would therefore not be appropriate to address them a decision in this case. The same conclusion would apply, a fortiori , to [OSCURATO:PERSONA] in so far as its 100% shareholding in Agroexpansión was purely financial.’ 12. [OSCURATO:PERSONA] stated that it could legitimately be assumed that [OSCURATO:PERSONA] was exercising a decisive influence over the conduct of Agroexpansión as from the date when [OSCURATO:PERSONA] had purchased the entire share capital of Agroexpansión through [OSCURATO:PERSONA]. [OSCURATO:PERSONA] concluded that a number of factors, set out, in particular, in recital 379 of the contested decision, confirmed that [OSCURATO:PERSONA] was in a position to exercise influence over Agroexpansión and was informed of the practices of which Agroexpansión was accused, that the arguments put forward by [OSCURATO:PERSONA] in its reply to the statement of objections did not warrant any different conclusion in that respect and that [OSCURATO:PERSONA] had to be held jointly responsible for the conduct of Agroexpansión as established by the contested decision for the period extending from the second half of 1997 until 10 August 2001. 13. [OSCURATO:PERSONA] determined those fines by applying its [OSCURATO:PERSONA] on the method of setting fines imposed pursuant to [OSCURATO:PERSONA] 15(2) of [OSCURATO:PERSONA] 17 and [OSCURATO:PERSONA] 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the [OSCURATO:PERSONA]’) and the [OSCURATO:PERSONA] on the non‑imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the [OSCURATO:PERSONA]’). 14. Having characterised the infringements found as ‘very serious’, the [OSCURATO:PERSONA] determined the starting amounts of the fines imposed on the processors, having regard to, inter alia, their size and their respective market shares. 15. In recitals 422 and 423 of the contested decision, the [OSCURATO:PERSONA] held that, in order that the fines imposed on Agroexpansión and WWTE should be sufficiently deterrent, having regard to the fact that those two undertakings belonged to multinational groups of considerable economic and financial strength under whose decisive influence they had operated, it was necessary to increase the starting amount of the fine for those two processors by applying a multiplying factor which might take into account both the size of the groups to which they belonged and their comparative size vis-à-vis the other Spanish processors. As regards Agroexpansión, the [OSCURATO:PERSONA] applied, for the purposes of deterrence, a multiplying factor of 2. 16. In respect of the duration of the infringement, the [OSCURATO:PERSONA] found, in recital 432 of the contested decision, that the cartel of the processors and [OSCURATO:SOCIETA] began no earlier than 13 March 1996 and had ceased to exist, according to the processors’ statements, on 3 October 2001. However, since the latest evidence in the [OSCURATO:PERSONA]’s possession was a meeting of 10 August 2001, the [OSCURATO:PERSONA] considered, for the purpose of determining the duration of the infringements concerned, that that cartel had lasted more than five years and four months, which represents an infringement of long duration. 17. Having set the basic amounts, the [OSCURATO:PERSONA] examined the aggravating and mitigating circumstances and whether it was appropriate to adjust the basic amounts calculated for the various addressees of the decision so that those amounts should not exceed the limit of 10% of turnover laid down in the second subparagraph of [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] (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). 18. Lastly, the [OSCURATO:PERSONA] applied Section D of the [OSCURATO:PERSONA], in which there is provision for significant reduction in a fine, paragraph 2 thereof stating that the undertaking concerned may qualify for such a reduction either where information is provided to the [OSCURATO:PERSONA] before a statement of objections is sent (the first indent of paragraph 2), or where it sends to the [OSCURATO:PERSONA], after receiving a statement of objections, information that the undertaking does not substantially contest the facts on which the allegations are based (the second indent of paragraph 2). [OSCURATO:PERSONA] decided that Taes should receive a reduction of 40% under paragraph 2, in the light both of its particularly valuable cooperation during the procedure, notably as regards the involvement of [OSCURATO:SOCIETA] in the cartel, and of the fact that it had never contested the facts as established in the statement of objections. 19. As regards Cetarsa and WWTE, the [OSCURATO:PERSONA] considered, first, that the information provided by them, although significant, had not proved to be as useful for the [OSCURATO:PERSONA]’s investigations as that provided by Taes and, secondly, that those two processors had contested a number of facts in their replies to the statement of objections. In those circumstances, in accordance with the first indent of Section D(2) of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] granted to Cetarsa and WWTE a 25% reduction of the fine. 20. As regards Agroexpansión, the [OSCURATO:PERSONA] considered that it had also provided it with useful information, but, in its reply to the statement of objections, Agroexpansión had contested the facts on the same lines as Cetarsa and WWTE and, moreover, had denied the secret nature of the processors’ agreements on (maximum) average delivery prices. Consequently, the [OSCURATO:PERSONA] granted to Agroexpansión a 20% reduction of the fine. The final amount of the fine imposed on Agroexpansión was EUR 2 592 000, [OSCURATO:PERSONA] being held jointly and severally liable for payment of that fine. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 21. By application lodged at the Registry of the [OSCURATO:PERSONA] on 28 January 2005, [OSCURATO:PERSONA] brought an action for the annulment of Articles 1, 3 and 5 of the contested decision in so far as those articles concerned it and, alternatively, for reduction of the fine imposed on Agroexpansión and on itself as a company jointly and severally liable for payment of that fine. 22. In support of its action, [OSCURATO:PERSONA] relied on five pleas in law: – first, an infringement of [OSCURATO:PERSONA] 81(1) EC, [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] 1/2003 and the principle of proportionality in that the contested decision held it liable for the infringements committed by Agroexpansión; – second, breach of the principles of proportionality and personal liability in that the [OSCURATO:PERSONA] held it to be responsible for the infringement committed by Agroexpansión without having shown that it had directly participated in the infringement; – third, breach of the principles of proportionality and personal liability and of [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] 1/2003 as regards the infringements committed by Agroexpansión before that company became part of the [OSCURATO:PERSONA] group; – fourth, breach of the principle of protection of legitimate expectations by failing to take into account a mitigating circumstance when determining the amount of the fine; – fifth, breach of the obligation to state reasons. 23. By the judgment under appeal, the [OSCURATO:PERSONA] upheld the third plea in law and rejected the other four pleas. In addition, it varied the contested decision to the extent that that decision held [OSCURATO:PERSONA] to be jointly and severally liable, with Agroexpansión, for payment of the total amount of the fine imposed on Agroexpansión. First, since [OSCURATO:PERSONA] could not be held jointly and severally liable for the infringement before 18 November 1997, the date of [OSCURATO:PERSONA]’s purchase of Agroexpansión, the [OSCURATO:PERSONA] reduced, as regards [OSCURATO:PERSONA], the rate of increase applied to the starting amount of the fine because of the duration of the infringement from 50% to 35%. Secondly, the [OSCURATO:PERSONA] applied to [OSCURATO:PERSONA] the same further reduction of 5% which it had granted to Agroexpansión, on the basis of its cooperation, in Agroexpansión v [OSCURATO:PERSONA] . Forms of order sought by the parties 24. AOI claims that the [OSCURATO:PERSONA] should: – set aside the judgment under appeal and annul the contested decision; – dismiss the [OSCURATO:PERSONA]’s cross-appeal, and – order the [OSCURATO:PERSONA] to pay the costs. 25. [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the appeal; – alternatively, dismiss the action for annulment of the contested decision; – uphold its cross-appeal, and – order AOI to pay the costs. The appeal 26. In support of its appeal, AOI relies on four grounds: first, infringement of Articles 101(1) TFEU and 296 TFEU and [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] 1/2003; second, infringement of the general principles of [OSCURATO:PERSONA] law and the rights contained in the [OSCURATO:PERSONA] for the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], signed at Rome on 4 November 1950, and in the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]; third, infringement of the principles of proportionality, joint and several liability and equal treatment and, fourth, failure to apply the third indent of Section 3 of the [OSCURATO:PERSONA] and infringement of the principle of protection of legitimate expectations. The first ground of appeal Arguments of the parties 27. By the first part of its first ground of appeal, AOI considers that the [OSCURATO:PERSONA] erred in law by not annulling the contested decision on the ground that the statement of reasons was insufficient. In that regard, AOI submits that the [OSCURATO:PERSONA] did not define the single standard of proof laid down in that decision for the attribution of liability for the unlawful conduct of a subsidiary to its parent company, namely the standard of the parent company’s ‘material involvement’ in the conduct under consideration, referred to in recital 376 of the decision, and failed to explain in that decision why the [OSCURATO:PERSONA] implicated some parent companies and not others. 28. AOI claims that the [OSCURATO:PERSONA] exceeded the limits of its jurisdiction since it attempted to correct that absence of a statement of reasons ex post facto by setting out, in paragraph 112 of the judgment under appeal, the so-called ‘dual basis’ method. However, the [OSCURATO:PERSONA] asserted for the first time before the [OSCURATO:PERSONA], in the case which gave rise to the judgment of 27 October 2010 in [OSCURATO:PERSONA] T‑24/05 [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [2010] [OSCURATO:PERSONA]‑5329, that it had employed that method in the contested decision. 29. By thus reinterpreting the contested decision, the [OSCURATO:PERSONA] sought to preserve the principle of equal treatment by claiming that the [OSCURATO:PERSONA] had applied that method in the same way to all the parent companies concerned. However, the [OSCURATO:PERSONA] stated that it had applied that same method to some of the parent companies while explaining, in its reply to a written question from the [OSCURATO:PERSONA], that it had held [OSCURATO:PERSONA] to be responsible for the infringement committed by Agroexpansión solely on the basis of the presumption that a parent company owning the entire share capital of a subsidiary in fact exercises a decisive influence over that subsidiary. 30. Further, recital 372 of the contested decision stated only that that presumption can be strengthened by other factors. Since the existence of additional evidence is not therefore a prerequisite of the attribution of liability to a parent company, the application of the dual basis method is arbitrary, since that presumption may be strictly applied in some cases, and not applied in others. 31. Further, even if the dual basis method was applicable, the evidence of the involvement of [OSCURATO:PERSONA] in the infringement is no more solid than that of the involvement of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] in the same infringement. 32. By the second part of its first ground of appeal, AOI claims that the [OSCURATO:PERSONA] should have declared that the [OSCURATO:PERSONA] had failed to state sufficient reasons, in the contested decision, for its rejecting the arguments of Agroexpansión intended to rebut application of the abovementioned presumption to [OSCURATO:PERSONA]. 33. In that regard, the [OSCURATO:PERSONA] confined itself to examining only one of the pieces of evidence put forward regarding the autonomous behaviour of Agroexpansión vis‑à‑vis its parent company. It is therefore impossible to determine whether the [OSCURATO:PERSONA] had attributed liability to [OSCURATO:PERSONA] on the basis solely of that presumption or after taking into consideration the evidence relied on by Agroexpansión in order to rebut such a presumption. Since the [OSCURATO:PERSONA] considered that that attribution of liability could be based on the material mentioned in recital 379 of the contested decision, which contains arguments which are vague and inaccurate, such a position is again not supported by an adequate statement of reasons. 34. [OSCURATO:PERSONA] considers that the first ground of appeal is partly inadmissible and must, in any event, be rejected as being unfounded. Findings of the [OSCURATO:PERSONA] 35. As regards the first part of the first ground of appeal, the objection of inadmissibility raised by the [OSCURATO:PERSONA], on the ground that the arguments relied on by AOI are new, cannot be accepted. The criticism of the [OSCURATO:PERSONA] is, in essence, that it re‑interpreted the contested decision, following explanations which were produced by the [OSCURATO:PERSONA] subsequent to that decision, in order to mitigate the infringements of the obligation to state reasons and the principle of equal treatment allegedly committed by the [OSCURATO:PERSONA] in that decision. Since such arguments could not have been raised at first instance, they cannot be held to be inadmissible on appeal (see, to that effect, [OSCURATO:PERSONA] C‑229/05 P PKK and KNK v [OSCURATO:PERSONA] [2007] ECR I‑439, paragraph 33, and the judgment of 28 July 2011 in [OSCURATO:PERSONA] C‑471/09 P to C‑473/09 P [OSCURATO:PERSONA] de Vizcaya and Others v [OSCURATO:PERSONA] , paragraph 124). 36. As regards the substance, it must be recalled, first, that liability for an infringement of the competition rules committed by a subsidiary may be attributed to its 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 (see [OSCURATO:PERSONA] C‑97/08 P [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [2009] ECR I‑8237, paragraph 58, and [OSCURATO:PERSONA] C‑628/10 P and C‑14/11 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others [2012] ECR I‑0000, paragraph 43). 37. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of [OSCURATO:PERSONA] 81 EC, the [OSCURATO:PERSONA] may address a decision imposing fines to the parent company, without having to establish the personal involvement of the parent company in the infringement (see, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 59, and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 44). 38. [OSCURATO:PERSONA] has made it clear that, in the particular case of a parent company having a 100% shareholding in a subsidiary which has infringed the [OSCURATO:PERSONA] rules on competition, that parent company is able to exercise decisive influence over the conduct of its subsidiary and there is a rebuttable presumption that the parent company does in fact exercise such influence ( [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 46 and case-law cited). 39. In those circumstances, it is sufficient for the [OSCURATO:PERSONA] to prove that the entire capital of a subsidiary is held by its parent company in order for it to be presumed that the parent actually exercises decisive influence over the commercial policy of that subsidiary. [OSCURATO:PERSONA] will then be able to hold the parent company to be jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market ( [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 61, and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 47). 40. However, that case-law does not imply that the [OSCURATO:PERSONA] is bound to rely exclusively on that presumption. There is nothing to prevent the [OSCURATO:PERSONA] from establishing that a parent company actually exercises decisive influence over its subsidiary by means of other evidence or by a combination of such evidence and that presumption ( [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 49). 41. In this case, as the [OSCURATO:PERSONA] stated in paragraphs 105 to 119 of the judgment under appeal, it is clear from the contested decision that the [OSCURATO:PERSONA] had decided, in order to assess whether the parent companies actually exercised decisive influence over the subsidiaries, to hold the parent companies liable only where there was evidence to support the presumption of actual exercise by the parent companies of decisive influence which arises from the control by the parent companies of the entire share capital of the subsidiaries (the ‘dual basis’ method) and, accordingly, had waived reliance on the application solely of the presumption of decisive influence ( [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 50). 42. As regards the use of that method in the contested decision, the [OSCURATO:PERSONA] stated the following in paragraphs 112 and 113 of the judgment under appeal: ‘112 ... in the present case, in order to attribute liability for the infringement on the part of subsidiaries to the parent companies, which found themselves in such a situation, the [OSCURATO:PERSONA] chose not to rely on that presumption alone [the presumption that a parent company which owns the entire capital of its subsidiary in fact exercises decisive influence over the conduct of that subsidiary], but also to base its findings on evidence designed to establish that those parent companies in fact exercised decisive influence over their subsidiary and, accordingly, to support that presumption (see, inter alia, recitals 372, 375, 376 and 378 of the contested decision). 113 Thus, recital 18 of the contested decision makes it expressly clear that, although the [OSCURATO:PERSONA] did not hold [OSCURATO:SOCIETA]’s ultimate and intermediate parent companies – [OSCURATO:PERSONA] and [OSCURATO:PERSONA] – liable for the unlawful conduct of their subsidiary, despite the fact that they controlled [OSCURATO:SOCIETA] 100%, the reason was that the [OSCURATO:PERSONA] did not have enough evidence that those companies in fact exercised decisive influence over that subsidiary. Recital 376 of the contested decision should also be understood in this way, even if it is drafted somewhat ambiguously. In particular, whilst it is true that the [OSCURATO:PERSONA] states in that recital that there is “no indication” in its file “of any material involvement of [OSCURATO:PERSONA] … and [OSCURATO:PERSONA] in the facts which are being considered in [the contested decision]”, when read together with recital 18 of the decision and in the context of that decision, that statement cannot be interpreted as meaning that the reason that the [OSCURATO:PERSONA] did not hold those two parent companies – or any other parent company – liable was their lack of involvement in the infringement.’ 43. It follows from those paragraphs of the judgment under appeal that the [OSCURATO:PERSONA] based its assessment of the dual basis method adopted by the [OSCURATO:PERSONA] in the contested decision on its own interpretation of that method, considered as a whole (see [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraphs 121 and 132). 44. That finding of the [OSCURATO:PERSONA] is not vitiated by any error of law. In particular, the [OSCURATO:PERSONA] was correct to interpret the decision in such a way as to refute the reading of recital 376 of the contested decision proposed by Agroexpansión in its reply, to the effect that it was because of the absence of factors indicating the material involvement of the parent companies of Taes in the infringement that the [OSCURATO:PERSONA] did not attribute liability to those companies, since such a reading was incompatible with a reading of that decision as a whole (see [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 133). 45. It follows, first, that, since the test of ‘material involvement’ was not used in the contested decision in order to determine whether the parent companies had any liability because of the conduct of their subsidiaries, AOI’s argument claiming that the statement of reasons was insufficient, as summarised in paragraph 27 of this judgment, is unfounded. 46. Secondly, AOI’s claim that the [OSCURATO:PERSONA] defined the dual basis method following explanations produced by the [OSCURATO:PERSONA] which post-dated that decision is also unfounded since, as is apparent from paragraph 43 of this judgment, the assessment made by the [OSCURATO:PERSONA] of that method was based on its interpretation of the contested decision. 47. As regards AOI’s assertion that the [OSCURATO:PERSONA] did not apply the dual basis method to [OSCURATO:PERSONA], it is clear that the [OSCURATO:PERSONA] correctly stated, in paragraphs 112 to 119 of the judgment under appeal, that the [OSCURATO:PERSONA] had applied the dual basis method to all the parent companies in the contested decision (see, by analogy, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 137), including, as is apparent from paragraphs 116 and 117, [OSCURATO:PERSONA]. That finding cannot be invalidated by the [OSCURATO:PERSONA]’s reply to a question from the [OSCURATO:PERSONA] in the course of proceedings, as referred to in paragraph 29 of this judgment, even if the interpretation of that reply advocated by AOI were to be correct. 48. As regards the argument, set out in paragraph 30 of this judgment, that the dual basis method is capable of being applied to some parent companies and not to other parent companies, suffice it to state that since, as is apparent from the preceding paragraph, the [OSCURATO:PERSONA] in fact applied the dual basis method to all the parent companies concerned in this case, that argument is wholly irrelevant. 49. As regards the argument that, even if one accepts that the dual basis method is applicable, the evidence of [OSCURATO:PERSONA]’s involvement in the infringement concerned is no more solid than that relating to the parent companies who were not held to be liable for that same infringement, it is clear that AOI is seeking to call into question the findings of fact and the appraisals of the facts made by the [OSCURATO:PERSONA]. 50. In that regard it must be borne in mind that the appraisal of the facts by the [OSCURATO:PERSONA] does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the [OSCURATO:PERSONA] of Justice ([OSCURATO:PERSONA] C‑397/03 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2006] ECR I‑4429, paragraph 85, and [OSCURATO:PERSONA] C‑352/09 P ThyssenKrupp Nirosta v [OSCURATO:PERSONA] [2011] ECR I‑2359, paragraph 180). 51. Since it is not claimed by AOI in this case that there was any distortion of the clear sense of the evidence, that argument must consequently be held to be inadmissible. 52. As regards, last, the second part of the first ground of appeal, it should be recalled that it follows from the second subparagraph of [OSCURATO:PERSONA] 256(1) TFEU, the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] and Articles 168(1)(d) and 169(2) of the [OSCURATO:PERSONA] of Procedure that an appeal must identify precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see the judgment of 11 April 2013 in [OSCURATO:PERSONA] C‑652/11 P Mindo v [OSCURATO:PERSONA] [2013] ECR I‑0000, paragraph 21 and case-law cited). 53. It is clear that, by its arguments put forward in the second part of its first ground of appeal, AOI’s complaint that the statement of reasons in the contested decision is insufficient is directed not at the [OSCURATO:PERSONA], but at the [OSCURATO:PERSONA]. In particular, its case contains no argument that the statement of reasons in the judgment under appeal is insufficient. To the extent that the [OSCURATO:PERSONA] is criticised for its failure to annul that decision because of an insufficient statement of reasons, it is not possible to identify from those arguments with the required precision either the challenged elements of the judgment under appeal or the legal arguments advanced in support of that challenge (see, by analogy, the order of 3 May 2012 in [OSCURATO:PERSONA] C‑240/11 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraphs 52 and 53). 54. It follows that the second part of the first ground of appeal must be held to be inadmissible. 55. Consequently, the first ground of appeal must be rejected as being in part inadmissible and in part unfounded. The second ground of appeal Arguments of the parties 56. By its second ground of appeal, relied on in the alternative, AOI considers that the judgment under appeal infringes a number of its fundamental rights, namely the right to the presumption of innocence and the principles of legality and individual liability for criminal offences and penalties stated, in particular, in Articles 48 and 49 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 57. AOI adds that, in accordance with those fundamental rights, a presumption of guilt is in principle forbidden and should be permitted only when there are exceptional circumstances. Yet the [OSCURATO:PERSONA] applied the presumption that a parent company actually exercises a decisive influence on the basis of the fact that it owns the entire share capital of a subsidiary when, in this case, there were no exceptional circumstances. Further, the fine which was imposed on it was substantial and not minimal. 58. [OSCURATO:PERSONA] contends that this ground of appeal is inadmissible, submitting, inter alia, that it is based on new arguments directed against the contested decision. Findings of the [OSCURATO:PERSONA] 59. As correctly stated by the [OSCURATO:PERSONA], AOI did not raise in its action at first instance the arguments which it now relies on in respect of this ground of appeal. 60. In accordance with the [OSCURATO:PERSONA] settled case-law, to allow a party to put forward for the first time before the [OSCURATO:PERSONA] of Justice a plea in law which it has not raised before the [OSCURATO:PERSONA] would in effect allow that party to bring before the [OSCURATO:PERSONA] a wider case than that heard by the [OSCURATO:PERSONA]. In an appeal, the [OSCURATO:PERSONA] jurisdiction is, as a general rule, confined to a review of the assessment by the [OSCURATO:PERSONA] of the pleas argued before it (see [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 111 and case-law cited). 61. It follows that the second ground of appeal must be rejected as being inadmissible. The third ground of appeal Arguments of the parties 62. By the first part of its third ground of appeal, AOI claims that, taking account of the reduced rate of increase applied to the starting amount of the fine on the basis of the duration of the infringement, the [OSCURATO:PERSONA] erred in applying, with regard to [OSCURATO:PERSONA], a rate of 35% instead of 30%. [OSCURATO:PERSONA] permit increases of 10% per year of infringement, but ‘rounding up years’ is not permitted. Since that method was applied to the other addressees of the contested decision, the principle of equal treatment requires the same method to be used for calculation of the fine for which [OSCURATO:PERSONA] was held to be jointly and severally liable. 63. By the second part of that ground of appeal, AOI claims that it is apparent from recital 423 of the contested decision that, in order to justify application of a multiplying factor to the starting amount of the fine, the [OSCURATO:PERSONA] applied the fifth paragraph of Section 1A of the [OSCURATO:PERSONA], relating to the possibility of taking account of the fact that large undertakings usually have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and the consequences stemming from it. 64. AOI claims that, in accordance with paragraph 125 of [OSCURATO:PERSONA] T‑386/06 Pegler v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑1267, it is the size of the undertaking concerned at the time of the infringement which is the criterion relevant to the justification of such an increase on the basis of that provision in the [OSCURATO:PERSONA]. Consequently, the multiplying factor applied to [OSCURATO:PERSONA] should have been reduced by the [OSCURATO:PERSONA] after it was held that [OSCURATO:PERSONA] was jointly and severally liable for the infringement committed by Agroexpansión only from 18 November 1997. 65. Alternatively, AOI considers that the [OSCURATO:PERSONA] erred in law by not reducing the multiplying factor of 2 applied by the [OSCURATO:PERSONA] for purposes of deterrence, in order to take account of the fact that [OSCURATO:PERSONA]’s responsibility covered only part of the period in which Agroexpansión was involved in the infringement. 66. [OSCURATO:PERSONA] considers that the arguments relied on by AOI in respect of the third ground of appeal are unfounded. Findings of the [OSCURATO:PERSONA] 67. As regards the first part of the third ground of appeal, it is apparent from the first paragraph of Section 1B of the [OSCURATO:PERSONA] that the duration of the infringement should be taken into consideration by the [OSCURATO:PERSONA] with a view to a possible increase in the amount of the fine. In respect of infringements of medium duration (in general, one to five years), there may be an increase by up to 50% in the amount determined for the gravity of the infringement whereas, in respect of infringements of long duration (in general, more than five years), there may be an increase of up to 10% per year in that amount. 68. However, in holding, in paragraphs 202 and 212 of the judgment under appeal, that [OSCURATO:PERSONA] could be held to be responsible for the infringement only in respect of a period of approximately three years and nine months, the [OSCURATO:PERSONA] decided that it was appropriate to increase the starting amount of the fine, with regard to [OSCURATO:PERSONA], by 35% and not by 50%, as in Agroexpansión’s case. That increase does not depart from the method followed by the [OSCURATO:PERSONA] since that period constitutes an infringement of medium duration according to the [OSCURATO:PERSONA], which in no way specify that, in respect of such infringements, the increase pertaining to the duration of the infringement must be set only in blocks of 10% for each year in which the infringement lasted. 69. Moreover, the [OSCURATO:PERSONA] cannot be criticised for any discrimination in that regard, since, in respect of the other addressees of the contested decision, the infringement lasted, according to recital 432 thereof, more than five years and four months and was consequently considered to be an infringement of long duration to which a separate rule for calculating the amount of the fine is applicable, in accordance with the first paragraph of Section 1B of the [OSCURATO:PERSONA]. 70. It follows that the first part of the third ground of appeal is unfounded. 71. As regards the main argument put forward by AOI in support of the second part of that ground, it is apparent from the file relating to the action before the [OSCURATO:PERSONA] that [OSCURATO:PERSONA] did not, at first instance, rely on arguments such as that based by AOI on a reading of recital 423 of the contested decision, summarised in paragraph 63 of this judgment. In accordance with the case-law cited in paragraph 60 above, that argument is consequently inadmissible. 72. With regard to the argument relied on by AOI in the alternative, it must be held that the [OSCURATO:PERSONA] did not err in law by holding, in paragraph 210 of the judgment under appeal, that the application, for purposes of deterrence, of a multiplying factor of 2, by which the starting amount of the fine imposed on Agroexpansión was adjusted, remained justified in the context of calculating the amount of the fine for which [OSCURATO:PERSONA] was held to be jointly and severally liable, since that factor was based on the size and overall resources of the undertaking concerned in 2003, the year preceding that in which the contested decision was adopted. 73. In that regard, it must be recalled that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine. In accordance with settled case‑law, fines imposed for infringements of [OSCURATO:PERSONA] 81 EC, as laid down in [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] 1/2003, are designed to penalise the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other economic operators from infringing, in future, the rules of [OSCURATO:PERSONA] competition law. The link between, on the one hand, the size and overall resources of undertakings and, on the other, the need to ensure that the fine has a deterrent effect cannot be disputed (see [OSCURATO:PERSONA] C‑289/04 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2006] ECR I‑5859, paragraph 16, and [OSCURATO:PERSONA] C‑413/08 P Lafarge v [OSCURATO:PERSONA] [2010] ECR I‑5361, paragraph 102). 74. It is the impact sought on the undertaking concerned which justifies the size and overall resources of that undertaking being taken into consideration in order to ensure that the fine has sufficient deterrent effect, and the penalty must not be negligible in the light, particularly, of the financial capacity of that undertaking ( Lafarge v [OSCURATO:PERSONA] , paragraph 104). 75. It follows that, in order to impose a fine of an amount likely to deter the undertakings concerned from infringing, in future, the rules of [OSCURATO:PERSONA] competition law, it is necessary to take into consideration the size and overall resources of those undertakings at the time when the contested decision is adopted (see, to that effect, the order of 7 February 2012 in [OSCURATO:PERSONA] C‑421/11 P Total and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 82). Consequently, the fact that [OSCURATO:PERSONA] was not held to be jointly and severally liable for Agroexpansión’s infringement for the period prior to 18 November 1997 has no relevance to the determination of a multiplying factor for purposes of deterrence. 76. It follows from the foregoing that the third ground of appeal must be rejected as being in part inadmissible and in part unfounded. The fourth ground of appeal Arguments of the parties 77. By its fourth ground of appeal, AOI submits that the [OSCURATO:PERSONA] wrongly held, in paragraph 193 of the judgment under appeal, that the attenuating circumstance referred to in the third indent of Section 3 of the [OSCURATO:PERSONA], namely the termination of the infringement as soon as the [OSCURATO:PERSONA] intervenes, could not be applied because the infringement committed by Agroexpansión had ended on 10 August 2001. In that regard, the [OSCURATO:PERSONA] had also accepted that, according to the processors’ statements, the cartel had ceased to exist on 3 October 2001. Since termination of the infringement as soon as the [OSCURATO:PERSONA] intervenes constitutes a mitigating circumstance, Agroexpansión could legitimately expect to be granted a reduction in the fine on that basis. 78. AOI further claims that the judgment under appeal is vitiated by an error in law in so far as the [OSCURATO:PERSONA] held, in paragraphs 194 and 195 of the judgment under appeal, that that mitigating circumstance does not apply in this case because of the nature of the infringement. AOI states that, in other [OSCURATO:PERSONA] decisions, fines imposed in respect of serious and secret infringements were reduced on the basis of that provision of the [OSCURATO:PERSONA]. AOI seeks a reduction of the fine imposed on Agroexpansión to take account of the fact that Agroexpansión’s involvement in the infringement ceased as soon as the [OSCURATO:PERSONA] intervened. 79. [OSCURATO:PERSONA] contends that this ground of appeal should be rejected. Findings of the [OSCURATO:PERSONA] 80. [OSCURATO:PERSONA] has already had occasion to confirm the finding of the [OSCURATO:PERSONA] that the circumstance referred to in the third indent of Section 3 of the [OSCURATO:PERSONA], namely termination of the infringement as soon as the [OSCURATO:PERSONA] intervenes, can logically constitute a mitigating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anti‑competitive conduct by the interventions in question (see, to that effect, [OSCURATO:PERSONA] C‑407/04 P Dalmine v [OSCURATO:PERSONA] [2007] ECR I‑829, paragraph 158). 81. In paragraph 193 of the judgment under appeal, the [OSCURATO:PERSONA] found that the infringement at issue had ceased on 10 August 2001, namely before the date of the first inspections carried out by the [OSCURATO:PERSONA], and consequently that termination could not constitute a mitigating circumstance for the purposes of setting the amount of the fine. In that regard, the [OSCURATO:PERSONA] stated in the same paragraph that, notwithstanding what was stated by the processors, the [OSCURATO:PERSONA] had accepted that date as being the date when the infringement came to an end on the ground that the latest evidence of the infringement in its possession was a meeting which took place on that date. 82. By its arguments AOI challenges, in essence, the finding of fact made by the [OSCURATO:PERSONA] as regards the date when that infringement came to an end, but does not claim any distortion of the clear sense of the evidence. Yet it follows from the case-law cited on paragraph 50 of this judgment that such arguments are not admissible in an appeal. 83. Since AOI’s argument that Agroexpansión could legitimately expect a reduction in the fine on the basis of the attenuating circumstance set out in the third indent of Section 3 of the [OSCURATO:PERSONA] is dependent on the challenge referred to in the preceding paragraph, that argument is also inadmissible. 84. As regards AOI’s criticism of paragraphs 194 and 195 of the judgment under appeal, suffice it to state that the considerations set out by the [OSCURATO:PERSONA] in those paragraphs, relating to the hypothesis that the infringement might have been considered to have ended on 3 October 2001, as claimed by [OSCURATO:PERSONA], are grounds which are included for the sake of completeness. 85. In accordance with the [OSCURATO:PERSONA] settled case-law, a complaint directed against a ground included in a judgment of the [OSCURATO:PERSONA] purely for the sake of completeness cannot lead to the judgment being set aside and is therefore ineffective (see, inter alia, order of 20 January 2009 in [OSCURATO:PERSONA] C‑374/07 P Mebrom v [OSCURATO:PERSONA] , paragraph 57, and [OSCURATO:PERSONA] C‑96/09 P Anheuser‑Busch v Budějovický Budvar [2011] ECR I‑2131, paragraph 211). 86. Consequently, the fourth ground of appeal must be dismissed as being partly inadmissible and partly ineffective. 87. Since none of the grounds relied on by AOI in support of its appeal can be upheld, the appeal must be dismissed. The cross-appeal 88. In support of its cross-appeal, the [OSCURATO:PERSONA] raises three grounds: (i) an insufficient statement of reasons; (ii) infringement of the principle ne ultra petita and of [OSCURATO:PERSONA] 266 TFEU, and (iii) infringement of the right to a fair hearing. 89. The grounds of the cross-appeal are directed against paragraph 214 of the judgment under appeal, where the [OSCURATO:PERSONA] stated that, in its judgment in Agroexpansión v [OSCURATO:PERSONA] , it granted to Agroexpansión, for its cooperation, a further reduction of 5% in addition to the reduction of 20% already granted in the contested decision. [OSCURATO:PERSONA] considered that it was therefore appropriate also to apply a reduction of 25% to the basic amount of the fine as calculated with regard to [OSCURATO:PERSONA]. Arguments of the parties 90. By its first ground of appeal, the [OSCURATO:PERSONA] considers that the [OSCURATO:PERSONA] does not explain why it was appropriate, in paragraph 214 of the judgment under appeal, to grant a reduction to the parent company, by reason of the fact that its subsidiary received such a reduction because of its cooperation. 91. According to the [OSCURATO:PERSONA], there is ambiguity as to whether the [OSCURATO:PERSONA] exercised its unlimited jurisdiction in paragraph 214, since, after reaching the conclusion, in paragraph 202 of the judgment under appeal, that the [OSCURATO:PERSONA] had made an error with respect to the duration of the infringement, the [OSCURATO:PERSONA] stated, in paragraph 203 of that judgment, that it was ‘therefore necessary to [vary] the contested decision’. Yet as regards the reduction on the basis of cooperation, it is unclear whether the [OSCURATO:PERSONA] considered that it was still acting in the exercise of its unlimited jurisdiction. 92. By its second ground of appeal, the [OSCURATO:PERSONA] states, first, that the principle ne ultra petita means that, as a general rule and with the exception of matters involving public policy, the [OSCURATO:PERSONA] can only rule on the pleas which are put before it. As stated in paragraph 52 of [OSCURATO:PERSONA] C‑310/97 P [OSCURATO:PERSONA] v AssiDomän [OSCURATO:PERSONA] and Others [1999] ECR I‑5363, the scope of the annulment which the [OSCURATO:PERSONA] pronounces may not go further than that sought by the applicant. That principle was not respected in this case, since the [OSCURATO:PERSONA] reduced the fine imposed on [OSCURATO:PERSONA] on the basis of cooperation, although [OSCURATO:PERSONA] had not put forward arguments in support of such a request for reduction. 93. [OSCURATO:PERSONA] submits, secondly, that the judgment under appeal infringed [OSCURATO:PERSONA] 266 TFEU and erroneously extended the legal effects of the judgment in Agroexpansión v [OSCURATO:PERSONA] . Consequently, the [OSCURATO:PERSONA] encroached on the [OSCURATO:PERSONA]’s responsibilities under that article. It is for the [OSCURATO:PERSONA] to take any measures with regard to a parent company that may be required as a result of a judgment concerning one of its subsidiaries. 94. Referring, inter alia, to paragraph 55 of [OSCURATO:PERSONA] v AssiDomän [OSCURATO:PERSONA] and Others , the [OSCURATO:PERSONA] submits that a judgment annulling an act of [OSCURATO:PERSONA] law cannot entail the annulment of other acts which have not been challenged before the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], but which may be subject to a claim that they are vitiated by an illegality similar to that on which such an annulment is based. 95. By its third ground of appeal, the [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] infringed the ‘principe du contradictoire’ [the adversarial principle] and the right to a fair hearing by depriving it of the opportunity to comment on the [OSCURATO:PERSONA] intention to reduce [OSCURATO:PERSONA]’s fine on the basis of pleas raised, by Agroexpansión, in a separate case. In that regard, the [OSCURATO:PERSONA] should have disclosed to the parties the conclusions which it intended to draw from certain facts. 96. [OSCURATO:PERSONA] submits that it could not have expected that such an approach would be adopted in the judgment under appeal, since this is the first time that the [OSCURATO:PERSONA] has reduced a fine on the basis of pleas and arguments raised in a case other than that before the court. 97. AOI considers that the grounds relied on by the [OSCURATO:PERSONA] are all unfounded. Findings of the [OSCURATO:PERSONA] 98. As regards the first ground of the cross-appeal, it must be observed that the obligation to state the reasons on which a judgment is based arises under [OSCURATO:PERSONA] 36 of the Statute of the [OSCURATO:PERSONA] of Justice, which applies to the [OSCURATO:PERSONA] by virtue of the first paragraph of [OSCURATO:PERSONA] 53 of the Statute, and [OSCURATO:PERSONA] 81 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA]. In accordance with the [OSCURATO:PERSONA] settled case-law, the statement of the reasons on which a judgment of the [OSCURATO:PERSONA] is based must clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the [OSCURATO:PERSONA] of Justice to exercise its power of review (see Mindo v [OSCURATO:PERSONA] , paragraph 29 and case-law cited). 99. As regards the further reduction of 5% granted to [OSCURATO:PERSONA] on the basis of the [OSCURATO:PERSONA], the judgment under appeal satisfies those requirements. 100. It is apparent, clearly and unequivocally, that the [OSCURATO:PERSONA] intended to grant that reduction in the exercise of its unlimited jurisdiction. In that regard, it first stated, in paragraph 204 of the judgment under appeal, that as part of the exercise of that jurisdiction it considered that it was appropriate to calculate the part of the fine for payment of which [OSCURATO:PERSONA] was to be jointly and severally liable with Agroexpansión by adopting the method and criteria applied by the [OSCURATO:PERSONA], in the contested decision, in order to set the fines to be imposed on the addressees thereof. Then, the wording ‘[t]hus, in the first place’, which opens paragraph 205 of that judgment, clearly indicates that the [OSCURATO:PERSONA] is there commencing the calculation intimated in the preceding paragraph. Last, by stating, in paragraph 214 of that judgment, that it is dealing with ‘[i]n the fourth place’ application of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] showed that the considerations in paragraph 214 were taken into account in that calculation. 101. Further, in stating that it was adopting the method and criteria applied in the contested decision, the [OSCURATO:PERSONA] thereby provided an explanation concerning the further reduction granted to [OSCURATO:PERSONA] on the basis of cooperation since, as the [OSCURATO:PERSONA] acknowledged at the hearing, the amount of the fine for which [OSCURATO:PERSONA] was held jointly and severally liable in that decision also had the benefit of the reduction granted to Agroexpansión on that basis. 102. The first ground of the cross-appeal must therefore be rejected as being unfounded. 103. As regards the argument put forward in support of the second ground, that the [OSCURATO:PERSONA] ruled ultra petita by reducing the fine imposed on [OSCURATO:PERSONA] on the basis of cooperation, notwithstanding the absence of any such request in [OSCURATO:PERSONA]’s action, it must be recalled, as stated in paragraph 100 of this judgment, that that reduction was made by the [OSCURATO:PERSONA] in the exercise of its unlimited jurisdiction. 104. Such jurisdiction was conferred on the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] by [OSCURATO:PERSONA] 17 of [OSCURATO:PERSONA] 17, and is now confirmed by [OSCURATO:PERSONA] 31 of [OSCURATO:PERSONA] 1/2003, in accordance with [OSCURATO:PERSONA] 261 TFEU. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] are therefore empowered not only to carry out a mere review of the lawfulness of the penalty but also to substitute their own appraisal for that of the [OSCURATO:PERSONA] and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see [OSCURATO:PERSONA] C‑3/06 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2007] ECR I‑1331, paragraph 61, and [OSCURATO:PERSONA] C‑199/11 Otis and Others [2012] ECR I‑0000, paragraph 62). That jurisdiction is exercised by taking into account all the factual circumstances (see, to that effect, [OSCURATO:PERSONA] C‑534/07 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2009] ECR I‑7415, paragraph 86 and case‑law cited). 105. It follows that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] are empowered to exercise their unlimited jurisdiction where the question of the amount of the fine is before them ( [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 62). 106. It is apparent from paragraph 71 of the judgment under appeal that [OSCURATO:PERSONA] had sought, in the alternative, the reduction of the fine imposed on Agroexpansión and, jointly and severally, on itself, and that the purpose of its third and fourth pleas in law was, inter alia, to justify the grant of such a reduction. 107. Consequently, the [OSCURATO:PERSONA] was entitled to exercise its unlimited jurisdiction, in particular by taking into account, in paragraph 214 of that judgment, the fact that it had granted, in Agroexpansión v [OSCURATO:PERSONA] , a further reduction to Agroexpansión on the basis of the latter undertaking’s cooperation. In exercising that jurisdiction, the [OSCURATO:PERSONA] therefore did not encroach on the responsibilities of the [OSCURATO:PERSONA] under the first paragraph of [OSCURATO:PERSONA] 266 TFEU. 108. Consequently, the second ground of the cross-appeal must be held to be unfounded. 109. By the third ground, the [OSCURATO:PERSONA] claims that there was an infringement of the adversarial principle and the right to a fair hearing, inter alia because, first, the [OSCURATO:PERSONA] did not disclose to the parties its intention to take into account, in the exercise of its power to vary the contested decision, the further reduction granted to Agroexpansión on the basis of its cooperation and because, secondly, the [OSCURATO:PERSONA] could not have expected the [OSCURATO:PERSONA] to adopt such an approach in the judgment under appeal. 110. However, as follows from paragraphs 105 to 107 of this judgment, taking into consideration that further reduction was part of a legal assessment which the [OSCURATO:PERSONA] was entitled to make in the exercise of its unlimited jurisdiction, without notifying the parties, prior to the delivery of the judgment (see, by analogy, [OSCURATO:PERSONA] C‑286/11 P [OSCURATO:PERSONA] v Tomkins [2013] ECR I‑0000, paragraph 61). 111. Further, as stated in paragraph 101 of this judgment, the application, in the judgment under appeal, of the same reduction for the benefit of [OSCURATO:PERSONA] was entirely consistent with the methodology followed by the [OSCURATO:PERSONA] in the contested decision, and consequently there is no basis for the [OSCURATO:PERSONA]’s claim that it was not foreseeable (see, to that effect, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 82). 112. It follows that the [OSCURATO:PERSONA] has not demonstrated in this case an infringement of the adversarial principle or the right to a fair hearing. 113. Consequently, the third ground relied on in support of the cross-appeal cannot be upheld and the cross-appeal must therefore be dismissed. Costs 114. [OSCURATO:PERSONA] 184(2) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], where the appeal is unfounded, the [OSCURATO:PERSONA] is to make a decision as to costs. [OSCURATO:PERSONA] 138(1) of those [OSCURATO:PERSONA], which apply to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 115. In relation to the appeal, since the [OSCURATO:PERSONA] applied for costs against AOI, and the latter has been unsuccessful, AOI must be ordered to pay the costs. 116. As regards the cross-appeal, since AOI applied for costs against the [OSCURATO:PERSONA], and the latter has been unsuccessful, the [OSCURATO:PERSONA] must be ordered to pay the costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal and the cross-appeal; 2. [OSCURATO:PERSONA]. to pay the costs of the appeal; 3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to pay the costs of the cross-appeal.