Corte di giustizia UE/2012

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 13 December 2012 ( * ) (Appeal – Competition – Agreements, decisions or concerted practices – Italian market for the purchase and first processing of raw tobacco – Price-fixing and market-sharing – Attributability of unlawful conduct of subsidiaries to their parent companies – Presumption of innocence – [OSCURATO:PERSONA] of the defence – Obligation to state reasons) [OSCURATO:PERSONA] C‑593/11 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 23 November 2011, [OSCURATO:PERSONA]., established in Danville, Virginia ([OSCURATO:PERSONA]), represented by G. Mastrantonio, avvocato, appellant, the other party to the proceedings being: [OSCURATO:PERSONA], represented by E. [OSCURATO:PERSONA], acting as Agent, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. Rosas, acting as President of the [OSCURATO:PERSONA], U. Lõhmus and A. Arabadjiev (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: V. Trstenjak, Registrar: A. [OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA]. (‘AOI’) seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 9 [OSCURATO:PERSONA] 2011 in [OSCURATO:PERSONA] T‑25/06 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] [OSCURATO:PERSONA]‑0000 (‘the judgment under appeal’), by which the [OSCURATO:PERSONA] dismissed an action seeking, primarily, the partial annulment of [OSCURATO:PERSONA] 2006/901/EC of 20 October 2005 relating to a proceeding under [OSCURATO:PERSONA] 81(1) [EC] ([OSCURATO:PERSONA] COMP/C.38.281/B.2 – Raw tobacco – Italy) (OJ 2006 L 353, p. 45) (‘the contested decision’), and, in the alternative, a reduction in the amount of the fines imposed. Background to the dispute 2 AOI is an American company which is the head of a group resulting from the merger of [OSCURATO:PERSONA]. (‘SCC’) and [OSCURATO:PERSONA]. (‘[OSCURATO:PERSONA]’), completed on 13 May 2005, after the infringement at issue had come to an end. 3 During the period of that infringement, [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’) and [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’) were subsidiaries which were wholly owned by, respectively, SCC and [OSCURATO:PERSONA], to which AOI is the legal successor. [OSCURATO:PERSONA] 2004, the shareholding in [OSCURATO:SOCIETA] was sold to four individuals with no connection to the [OSCURATO:PERSONA] group, and that company was renamed [OSCURATO:SOCIETA]. 4 On 20 October 2005, the [OSCURATO:PERSONA] adopted the contested decision. [OSCURATO:PERSONA] 1(1) of that decision, it found that [OSCURATO:SOCIETA], [OSCURATO:SOCIETA], [OSCURATO:SOCIETA] (referred to as [OSCURATO:SOCIETA] in the contested decision) and [OSCURATO:SOCIETA] (collectively, ‘the processors’), as well as certain of their parent companies, including SCC, [OSCURATO:PERSONA] and [OSCURATO:PERSONA]., the parent company of [OSCURATO:SOCIETA], had, between 1995 and early 2002 (with the exception of [OSCURATO:SOCIETA], which had been involved in the cartel for a shorter period of time), engaged in several practices which constituted a single and continuous infringement of [OSCURATO:PERSONA] 81(1) EC. 5 In particular, as regards the liability of SCC and [OSCURATO:PERSONA], the [OSCURATO:PERSONA] relied on the presumption of actual exercise of decisive influence – arising from the parent companies’ 100% ownership of the share capital of their subsidiaries – over their subsidiaries and rejected the arguments and evidence produced by those companies with a view to rebutting that presumption. 6 [OSCURATO:PERSONA] also stated that, since the parent companies which controlled [OSCURATO:SOCIETA] and [OSCURATO:SOCIETA] during the infringement period had ceased to exist following their merger in the new entity AOI, that entity, as the legal successor of those two groups, was the addressee of the contested decision. 7 In order to determine, first, the starting amount of the fines to be imposed on [OSCURATO:SOCIETA] and [OSCURATO:SOCIETA], the [OSCURATO:PERSONA], firstly, classified the processors’ infringement as very serious in so far as it related to the fixing of the purchase prices of varieties of raw tobacco in Italy and the sharing of the purchased quantities. Secondly, in order to ensure that the fine had a deterrent effect, the [OSCURATO:PERSONA] applied a multiplying factor of 1.25 in respect of the fact that those companies belonged to multinational groups of considerable economic and financial strength. Thus, the starting amount of the fines imposed on those companies was set at EUR 12.5 million. 8 [OSCURATO:PERSONA] then increased that amount by 60% in respect of the duration of the infringement period of six years and four months, with the result that the basic amount of the fines imposed on those companies was set at EUR 20 million. 9 [OSCURATO:PERSONA] decided not to give [OSCURATO:SOCIETA] and [OSCURATO:SOCIETA] the benefit of attenuating circumstances. 10 Finally, the [OSCURATO:PERSONA], on the one hand,, limited the liability of [OSCURATO:SOCIETA] to 10% of its turnover for the most recent financial year and, on the other hand, reduced the fines imposed on [OSCURATO:SOCIETA] and [OSCURATO:SOCIETA], by 50% and 30%, respectively, pursuant to the [OSCURATO:PERSONA] notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), since those companies (a) were first and second, respectively, to have submitted evidence representing significant added value in relation to the evidence already in the [OSCURATO:PERSONA]’s possession and (b) terminated their participation in the infringement on the date of the submission of that evidence. 11 Hence, the [OSCURATO:PERSONA], at [OSCURATO:PERSONA] 2(b) of the contested decision, set the final amount of the fine to be imposed on [OSCURATO:PERSONA] Italia and AOI at EUR 10 million, AOI being liable for the whole fine and [OSCURATO:SOCIETA] being jointly and severally liable for only EUR 3.99 million. [OSCURATO:PERSONA] 2(c) of that decision, the [OSCURATO:PERSONA] set the final amount of the fine to be imposed on [OSCURATO:SOCIETA] and AOI, jointly and severally, at EUR 14 million. The proceedings before the [OSCURATO:PERSONA] and the judgment under appeal 12 By application lodged at the Registry of the [OSCURATO:PERSONA] on 24 January 2006, AOI brought an action, principally, for the partial annulment and, in the alternative, the alteration of the contested decision. 13 In support of its action, AOI put forward three pleas in law, the first of which, raised by way of principal claim, alleged breach of the rules governing the imputability to a parent company of the infringements committed by its subsidiary as well as breach of the rights of the defence. [OSCURATO:PERSONA] findings regarding the second and third pleas are not the subject of the present appeal. 14 [OSCURATO:PERSONA] dismissed that action in its entirety and ordered AOI to pay the costs. The proceedings before the [OSCURATO:PERSONA] of Justice and the forms of order sought 15 By its appeal, AOI claims that the [OSCURATO:PERSONA] of Justice should: –        set aside the judgment under appeal; –        annul [OSCURATO:PERSONA] 1(1) of the contested decision, in so far it relates to SCC, [OSCURATO:PERSONA] and AOI; –        reduce the fines imposed on [OSCURATO:SOCIETA] and [OSCURATO:SOCIETA] so that they do not exceed 10% of their respective turnovers in the last financial year and that they take into account the fact that the multiplying factor based on the size of the group is not applicable; and –        order the [OSCURATO:PERSONA] to pay the costs. 16 [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to dismiss the appeal and to order AOI to pay the costs. 17 By order of the President of the [OSCURATO:PERSONA] of 6 August 2012, the present case was joined with [OSCURATO:PERSONA] C‑654/11 P for the purposes of the oral procedure and the judgment. 18 However, under [OSCURATO:PERSONA] 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], dismiss the appeal by reasoned order without opening the oral procedure. It is appropriate to apply that provision in the present case. The appeal 19 AOI puts forward two grounds in support of its appeal. By the first ground, AOI claims an infringement of [OSCURATO:PERSONA] 296 TFEU as well as of Articles 48 and 49 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and, more generally, of fundamental rights. The second ground of appeal alleges breach of the rights of defence, of the general principles relating to the burden of proof and of the procedural rules of evidence. The first ground of appeal 20 The first ground of appeal is divided into two limbs. By the first limb, AOI criticises the [OSCURATO:PERSONA] for having infringed [OSCURATO:PERSONA] 296 TFEU. By the second limb, AOI complains that the [OSCURATO:PERSONA] misinterpreted Articles 48 and 49 of the Charter of [OSCURATO:PERSONA] and the principle of individual liability. The first limb –        Arguments of the parties 21 In the context of the first limb of the first ground of appeal, AOI alleges a failure to state reasons, resulting in ‘[lacking], insufficient, contradictory’ reasoning and a distortion of the facts. 22 That limb concerns, firstly, the manner in which the [OSCURATO:PERSONA] examined and rejected the evidence submitted in order to rebut the presumption that parent companies exercise decisive influence over the actions of their subsidiaries. The objective of that evidence was to demonstrate, first, that the subsidiaries had their own resources and local management, second, that [OSCURATO:SOCIETA] had an independent Board of Directors as well as an independent CEO with a very broad range of powers and, finally, that [OSCURATO:SOCIETA] also had such a Board of Directors. 23 Secondly, AOI claims that the [OSCURATO:PERSONA] failed to state the grounds on which it rejected AOI’s arguments concerning the irrelevance of certain documents used by the [OSCURATO:PERSONA] in order to establish the existence of ‘lines of communication’ between [OSCURATO:SOCIETA] and SCC and that it erred in its assessment of the evidence regarding the existence of ‘lines of communication’ between [OSCURATO:SOCIETA] and [OSCURATO:PERSONA]. 24 Those points of criticism relate to paragraphs 130 to 132, 137 to 139, 142 to 144, 152 and 154 of the judgment under appeal. 25 [OSCURATO:PERSONA] contests the admissibility and the merits of the first limb of the first ground of appeal. –        Findings of the [OSCURATO:PERSONA] 26 It must be pointed out that the first limb of the first ground of appeal is expressed in a confused manner. Furthermore, even though breach of the obligation to state reasons is pleaded, AOI’s arguments appear to relate more to a contestation of the assessment of the facts made by the [OSCURATO:PERSONA]. 27 In so far as AOI contests the reasoning of the judgment under appeal, it must be pointed out, firstly, that, in the context of the appeal, the purpose of review by the [OSCURATO:PERSONA] of Justice is, inter alia, to consider whether the [OSCURATO:PERSONA] addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the plea alleging that the [OSCURATO:PERSONA] failed to rule on arguments relied on at first instance amounts essentially to relying on a breach of the obligation to state reasons which derives from [OSCURATO:PERSONA] 36 of the Statute of the [OSCURATO:PERSONA] of Justice, applicable to the [OSCURATO:PERSONA] by virtue of the first paragraph of [OSCURATO:PERSONA] 53 of that Statute, and from [OSCURATO:PERSONA] 81 of the Rules of Procedure of the [OSCURATO:PERSONA] (see order of 31 March 2011 in [OSCURATO:PERSONA] C‑367/10 P EMC Development v [OSCURATO:PERSONA] , paragraph 46 and the case-law cited). 28 In that regard, it is clear from settled case-law that the [OSCURATO:PERSONA] of Justice does not require the [OSCURATO:PERSONA] to provide an account which follows exhaustively and one-by-one all the arguments put forward by the parties to the case and that the [OSCURATO:PERSONA] reasoning may therefore be implicit on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the [OSCURATO:PERSONA] of Justice with sufficient material for it to exercise its power of review (see order of 15 June 2012 in [OSCURATO:PERSONA] C‑493/11 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 48). 29 At paragraphs 129 to 170 of the judgment under appeal, the [OSCURATO:PERSONA] replied to each of the arguments put forward by AOI at first instance. The responses provided by the [OSCURATO:PERSONA] are clear and unequivocal and disclose the matters which it found persuasive in arriving at its conclusion. The fact that the [OSCURATO:PERSONA], on the merits, arrived at a different conclusion from that of that company cannot in itself vitiate the judgment under appeal on the ground of failure to state reasons (see, by analogy, [OSCURATO:PERSONA] C‑362/05 P Wunenburger v [OSCURATO:PERSONA] [2007] ECR I‑4333, paragraph 80). 30 As regards AOI’s argument that the [OSCURATO:PERSONA] contradicted itself at paragraphs 138 and 139 of the judgment under appeal by simultaneously confirming that the delegation of powers granted to the CEO of [OSCURATO:SOCIETA] was not ‘at all uncommon’ and was ‘not credible’, it must be noted that that allegation results from a manifestly erroneous reading of the judgment under appeal. Firstly, the [OSCURATO:PERSONA] found that it is not in any way unusual for a parent company to delegate the management of its subsidiary to the CEO of that subsidiary and that the fact that that CEO, in himself, had considerable powers might demonstrate that the parent company wished to simplify the exercise of its control over its subsidiary, specifically by concentrating all the powers in the hands of ‘a man [it] trust[s]’. Secondly, the [OSCURATO:PERSONA] considered that it was not credible that a parent company would permit all the powers of a subsidiary to be delegated to a single CEO who, in practice, did not make that parent company aware of his acts. Consequently, there is no contradiction between those two statements. 31 Furthermore, notwithstanding AOI’s claims, there is no contraction in paragraph 131 of the judgment under appeal. By that paragraph, the [OSCURATO:PERSONA] found that the subsidiaries concentrated on the purchase of raw tobacco and that the parent companies often acquired and marketed the processed tobacco, and it drew from this the conclusion that the groups concerned were vertically integrated. 32 It follows that, in so far as AOI submits that the [OSCURATO:PERSONA] breached its duty to give reasons, that company’s arguments are manifestly unfounded. 33 In so far as AOI seeks to call into question the merits of the [OSCURATO:PERSONA] reasoning in the judgment under appeal, it must be held that the paragraphs of that judgment that are challenged comprise factual assessments which cannot be reviewed by the [OSCURATO:PERSONA] of Justice in the context of an appeal. Such an argument is therefore manifestly inadmissible. 34 In that regard, it must be recalled that, according to settled case‑law of the [OSCURATO:PERSONA], it is clear from [OSCURATO:PERSONA] 256 TFEU and from the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice that the [OSCURATO:PERSONA] has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the [OSCURATO:PERSONA] has found or assessed the facts, the [OSCURATO:PERSONA] of Justice has jurisdiction under [OSCURATO:PERSONA] 256 TFEU to review the legal characterisation of those facts by the [OSCURATO:PERSONA] and to review the legal conclusions which it has drawn from them (see judgment of 19 July 2012 in [OSCURATO:PERSONA] C‑628/10 P and C‑14/11 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2012] ECR I‑0000, paragraph 84 and the case-law cited). 35 Therefore, inasmuch as, firstly, by the arguments thus relied on, AOI is in fact seeking a fresh assessment of the facts and, secondly, has in no way explained how the [OSCURATO:PERSONA] distorted the evidence, those arguments must be rejected as inadmissible. 36 In the light of the foregoing, the first limb of the first ground of appeal must be rejected as being manifestly unfounded and, since, by that limb, AOI seeks to challenge the appraisal of the facts by the [OSCURATO:PERSONA], as being manifestly inadmissible. The second limb –        Arguments of the parties 37 By the second limb of the first ground of appeal, AOI contests the application made by the [OSCURATO:PERSONA] of the presumption of actual exercise of decisive influence, which, according to that company, infringes the principle of the presumption of innocence as well as the principles of legality and individual liability. 38 [OSCURATO:PERSONA] contests the admissibility and the merits of the second limb of the first ground of appeal. –        Findings of the [OSCURATO:PERSONA] 39 It must be pointed out, as correctly submitted by the [OSCURATO:PERSONA], that the argument alleging a breach of fundamental rights, advanced by AOI in the context of the second limb, was not raised before the [OSCURATO:PERSONA]. 40 In accordance with settled case-law, however, 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] , paragraph 111 and the case-law cited). 41 In any event, it must be pointed out that AOI claimed before the [OSCURATO:PERSONA] that, in order to attribute to a parent company liability for the actions of its subsidiary, the onus was on the [OSCURATO:PERSONA] to prove that that parent company was involved in the actions of its subsidiary. 42 [OSCURATO:PERSONA] did not err in law when it referred, in paragraphs 84 and 85 of the judgment under appeal, to the settled case-law according to which the conduct of a subsidiary may be imputed to the parent company in particular where, although it has 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. 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 on the parent company, without having to establish the personal involvement of the latter in the infringement (see [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraphs 43 and 44 and the case-law cited). 43 [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 (see [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 46 and the case-law cited). 44 In that regard, it is for entities wishing to rebut the presumption of actual exercise of decisive influence to provide any evidence relating to the economic, organisational and legal links between the subsidiary in question and the parent company which in their view is capable of demonstrating that they do not constitute a single economic entity (see [OSCURATO:PERSONA] C‑521/09 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] ECR I‑0000, paragraph 65). 45 The mere fact that an entity does not provide, in a given case, evidence capable of rebutting the presumption of actual exercise of decisive influence does not mean that that presumption cannot, in any event, be rebutted (see [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 66). 46 Consequently, the second limb of the first ground of appeal must be rejected as inadmissible and, in any event, unfounded. 47 It follows from all of the foregoing considerations that the first ground of appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded. The second ground of appeal –        Arguments of the parties 48 AOI claims, firstly, that the [OSCURATO:PERSONA] did not carry out a satisfactory analysis of its pleas concerning the inadmissibility of the documents not referred to in the statement of objections which the [OSCURATO:PERSONA] used in the contested decision as evidence of the existence of ‘lines of communication’. Secondly, it takes the view that those new documents were admitted in breach, as far as the parent companies are concerned, of the rights of defence and, in any event, on the basis of a misapplication of the principles governing the burden of proof. 49 [OSCURATO:PERSONA] contests the admissibility and the merits of this ground of appeal. –        Findings of the [OSCURATO:PERSONA] 50 Firstly, it must be observed that the [OSCURATO:PERSONA] provided, to the requisite legal standard, reasons for its judgment in holding, firstly, at paragraph 185 of that judgment, that, in order to justify attributing to the parent companies liability for the conduct of their subsidiaries, the [OSCURATO:PERSONA] was entitled, in principle, to limit itself to establishing the ownership of the entire capital of the subsidiaries by their parent companies, but that it was required to adopt a position on the arguments relied on by the parties in reply to the statement of objections, and, secondly, at paragraph 186 of that judgment, that, as it did not involve evidence establishing the liability of the parent companies, the assessment of those documents was not capable of affecting the efficacy of the exercise, by those companies, of the rights of defence. 51 Secondly, the [OSCURATO:PERSONA] was right to point out, at paragraph 185 of the judgment under appeal, that, in order to justify attributing to the parent companies liability for the conduct of their subsidiaries, the [OSCURATO:PERSONA] was entitled, in principle, to limit itself to establishing the ownership of the entire capital of the subsidiaries by their parent companies. As follows from the case-law referred to at paragraph 44 of the present order, it was for AOI to provide any evidence which in its view was capable of rebutting the presumption of actual exercise of decisive influence. Therefore, as the documents referred to by that company do not constitute evidence designed to establish the liability of the parent companies, the [OSCURATO:PERSONA] did not err in law in holding, at paragraph 186 of the judgment under appeal, that the assessment of those documents, included in the administrative file, was not capable of affecting the efficacy of the exercise, by SCC and [OSCURATO:PERSONA], of the rights of defence, especially as those companies had access to those documents, which were, in any event, already in their possession during the administrative procedure. 52 It follows from this that the second ground of appeal, which is manifestly unfounded, must be rejected. 53 In the light of all the foregoing considerations, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded. Costs 54 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings 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. 55 Since the [OSCURATO:PERSONA] has applied for costs to be awarded against AOI, and as the latter has been unsuccessful, AOI must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA]. shall pay the costs. [Signatures] * Language of the case: English.