European Court of Justice affirms that the theory of economic entity does not imply that earlier cartel infringements by othe…

On 13 June 2013, the European Court of Justice ("ECJ") rendered its judgement in the case Versalis SpA v. Commission (C-511/11 P) upholding the General Court's judgement in its entirety. In particular, the ECJ upheld a finding of personal responsibility of one company for actions carried out by another company when both companies are part of the same economic entity. The ECJ quoted established case law on the rebuttable presumption of decisive influence to confirm that the General Court ("GC") rightly considered all three entities to form one single undertaking for competition law purposes. In view hereof, the ECJ confirms the view of the General Court that, in light of the circumstances at hand, the principle of personal responsibility does not preclude the penalty for the infringement initially committed by one Eni subsidiary (EniChem SpA/Syndial) and subsequently continued by another Eni subsidiary (Versalis) from being imposed in its entirety on the latter.

However, the ECJ confirms that, when calculating the amount of the fine and when applying a multiplier for earlier cartel infringements, the Commission has a duty to state the reasons why it takes into account earlier cartel infringements committed by the same undertaking so as to enable the addressees to exercise their right of appeal. In the present case, the Court found that, even if previous cartel decisions referred to ‘Eni' as involved party and/or were addressed to Versalis' former parent ‘Enichem', they did not enable it to understand ‘in what capacity and to what extent' Versalis - itself not an addressee of the decisions - was involved in them.

Therefore, the ECJ confirms the GC's ruling in as far as it lowered the fine on Versalis as there were insufficient reasons for a finding of repeat infringements.