25.5.2013

Official Journal of the European Union

C 147/13

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(Case C-123/13 P)

2013/C 147/23

Language of the case: Italian

Parties

Appellants: Versalis SpA and Eni SpA (represented by: M. Siragusa, G.M. Roberti, F. Moretti, I. Perego, F. Cannizzaro, A. Bardanzellu, D. Durante and V. Laroccia, avvocati)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—set aside, in whole or in part, the judgment of the General Court of the European Union of 13 December 2012, in so far as it dismissed the joint action brought by Versalis and Eni, and, accordingly:

—annul, in whole or in part, the Decision of the European Commission of 5 December 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38629 — Chloroprene rubber);

—annul, or at least reduce, the fine imposed on Versalis and Eni by that decision;

or, in the alternative,

—set aside, in whole or in part, the judgment in Case T-103/08 in so far as it dismissed the action brought by Versalis and Eni, and refer the case back to the General Court for a ruling on the merits in the light of such guidance as the Court of Justice may provide;

—order the Commission to pay the costs incurred in relation to the current appeal proceedings and to the proceedings at first instance (Case T-103/08).

Grounds of appeal and main arguments

In support of their appeal against the judgment in Case T-103/08, Versalis and Eni submit, first, that the General Court, in breach of Article 101 TFEU, deviated from the relevant EU case-law in order to attribute to the parent company — Eni — the infringement committed, so it is claimed, by Eni’s subsidiaries in the chloroprene rubber industry, and, in particular, that the General Court deviated from its duties to conduct a proper analysis and to state reasons when assessing the evidence adduced to reverse the presumption that decisive influence was exercised, thereby acting in breach of the fundamental principles of legality, of liability for one’s own acts in relation to antitrust liability and of the presumption of innocence, and infringing the rights of the defence, as well as the principle of the limited liability of companies.

Secondly, Versalis and Eni submit that the General Court misapplied the relevant EU case-law in order to attribute to Versalis the infringement committed by Syndial SpA and did not give an adequate statement of reasons for rejecting the pleas raised by Eni and Versalis at first instance.

The third ground of appeal is that the General Court applied incorrectly, and in a contradictory manner, the principle enshrined in case-law regarding express dissociation from a cartel, and infringed the principle of in dubio pro reo, by holding that EniChem SpA had taken part in the meeting of 12 to 13 May 1993 in Florence and that the meetings which took place in 2002, in which Versalis took part, had been anti-competitive in nature. As a result, the General Court made an incorrect assessment and failed to exercise its own jurisdiction to review legality, in finding that those companies had participated in the cartel throughout its duration (that is, from May 1993 until May 2002).

Moreover, it is submitted that the General Court infringed EU law by failing to point out that the Commission had made serious errors in determining the basic amount of the fine in accordance with the Guidelines on the method of setting fines.

It is also claimed that the General Court infringed EU law by partially confirming that the aggravating circumstance of repeated infringement applied to Versalis and, in addition, by not giving an adequate statement of reasons for its conclusions on that point; in the alternative, the General Court erred in setting the percentage reduction in the increase of the fine and in maintaining Eni’s joint liability for payment of the fine, including the part attributable to repeated infringement.

According to Versalis and Eni, the General Court then manifestly misapplied Article 23(2) of Regulation (EC) No 1/2003 in determining the maximum amount of the fine and erred in law by failing to conduct a full review of how the Leniency Notice was applied by the Commission. They also claim that the General Court failed to note that the Commission had acted in breach of the principles of fairness, equal treatment and the protection of legitimate expectations when it, first, deprived Versalis and Eni of their chance to compete ‘on equal terms’ with the other undertakings to have the amount of the fine reduced, and, second, found that their cooperation had not merited a reduction of the fine for the purposes of the Notice and the Guidelines.

Lastly, Versalis and Eni claim that the General Court failed to exercise its jurisdiction to review the legality of the Commission’s findings regarding the quantification of the fine ultimately imposed.

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Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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