Brussels, 1 March 2013
Antitrust: Commission sends second statement of objections to ENI and Versalis in synthetic rubber cartel after General Court judgment
The European Commission has informed ENI S.p.A. and its affiliate Versalis S.p.A., previously known as Polimeri Europa S.p.A., that it intends to re-impose a 50% fine uplift for recidivism, representing €90.75 million, in the context of the synthetic rubber cartel investigation. The Commission had originally imposed fines on these two companies in November 2006 for participating in a cartel in this sector (see IP/06/1647). The uplift imposed for recidivism had been annulled by the General Court on 13 July 2011 (cases T-39/07 and T-59/07). The General Court ruled that the Commission had not explained sufficiently its conclusion that one and the same undertaking had repeated an infringement. The Commission has now provided full details on this issue to remedy the Court's criticism. The sending of a statement of objections does not prejudge the final outcome of the re-opened investigation. The addressees now have the opportunity to reply to the Commission's objections before any amending decision
In November 2006 the Commission had fined ENI and Versalis €272.25 million for participating in the synthetic rubber cartel (also known as the Butadiene Rubber and Emulsion Styrene Butadiene Rubber, 'BR/ESBR', cartel). The Commission imposed the fine jointly and severally on ENI and Versalis. This fine included a 50% increase of the basic amount of the fine, amounting to €90.75 million, due to the aggravating circumstance of recidivism, as foreseen in the then applicable Commission 1998 guidelines on fines. The Commission found indeed that at the time of the synthetic rubber infringement, the same undertaking had already committed twice the same kind of infringement of EU competition rules in the Polypropylene (see IP/86/191) and PVC II (see IP/94/732) cartels.
The General Court fully confirmed the participation of ENI and Versalis in the infringement but annulled the fine uplift for recidivism on the ground that the Commission "had not adduced sufficient detailed and specific evidence" to justify its conclusion that the three infringements had been committed by the same undertaking.
To rectify the procedural defect found by the General Court, in the Statement of Objections, the Commission provides full details showing that the addressees of the two previous cartel decisions, notably Anic in Polypropylene and Enichem in PVC II, belong to the same undertaking as ENI and Versalis, since ENI had a (close to) 100% ownership in those companies at the time of their involvement in the two previous cartels. In addition, the Commission provides full details showing that Versalis is the economic successor of Enichem, which in turn is the economic successor of Anic. As a result, the Commission reaches the preliminary conclusion that the fine imposed on ENI and Versalis for participating in the synthetic rubber cartel should include an uplift for the aggravating circumstance of recidivism.
Related Court cases
ENI and Versalis have appealed the General Court judgements before the Court of Justice of the European Union (cases C-508/11 P and C-511/11 P). The Commission has cross-appealed these judgements on the annulment of recidivism. The Statement of Objections is without prejudice to the position of the Commission expressed in these appeal procedures.
Furthermore, ENI and Versalis lodged an appeal before the General Court against an administrative letter of the Commission services of April 2012 informing them that the Commission intended to resume proceedings in this case with a view to possibly reinstate the part of the synthetic rubber decision annulled by the General Court (cases T-240/12 and T-241/12).
A statement of objections is a formal step in Commission investigations into suspected violations of EU rules that prohibit cartels and restrictive business practices (Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the European Economic Area Agreement). The Commission informs the parties concerned in writing of the objections raised against them and the companies can examine the documents on the Commission’s investigation file, reply in writing and request an oral hearing to present their comments on the case before representatives of the Commission and national competition authorities.
Where the annulment of a Commission Decision is due to insufficient reasoning, the Commission is entitled to re-instate a Decision reaching the same conclusion as the annulled one, on the basis of the same facts, but curing the irregularity in question. This is what the Commission aims to do in this case, depending on the outcome of the judgments of the European Court of Justice on the appeals against the General Court judgements.
More information on this case will be available on the competition website in the Commission's public case register under the case number 40032. The details of the original 2006 synthetic rubber cartel decision can be found under the case number 38638.