Opinion of the Advocate General — ECLI:EU:C:2015:529
Date: 2015-09-03
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 16 June 2016 1. Appeal — Grounds — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Ground of appeal alleging distortion of the clear sense of the evidence — Material inaccuracy of the finding not clear from the case-file — Inadmissibility (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para) 2. Appeal — Grounds — Error of law — Definition — Application of the legal criterion as the basis for its appraisal of the facts — Included (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.) 3. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Rebuttable — Subsidiary’s failure to respect its parent company’s instructions — Insufficient by itself — Obligation on the parent company to rebut this presumption — Judicial review — Scope (Arts 101(1) TFEU and 256(1), second para., TFEU) 4. Appeal — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility — Plea seeking solely to contest the merits of the judgment under appeal — Plea arising from the judgment under appeal itself — Admissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58) 5. EU law — Principles — Equal treatment — Need to uphold the principle of legality– Not possible to rely on the unlawful acts committed in favour of another 6. Appeal — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it — Scope 1. See the text of the decision. (see paras 23-25) 2. The question whether the General Court has taken the right legal criterion as the basis for its appraisal of the facts and the evidence is a question of law, which is amenable to review by the Court of Justice in an appeal. (see para. 26) 3. When examining a breach of EU competition law, in order to assess whether that subsidiary decides independently upon its own conduct on the market or carries out, in all material respects, the instructions given to it by its parent company, the EU judicature must take into consideration all relevant factors, which may vary from case to case and therefore cannot be set out in an exhaustive list. As part of that review, it is for the EU judicature to carry out an assessment of the facts which are contemporaneous with the period of the infringement, but without prejudice to the possibility of relying on elements relating to a prior period, in so far as it is able to establish the relevance of those elements to the period of the infringement and it does not automatically apply to the period of the infringement the conclusions stemming from the assessment of elements prior to that period. As part of this overall assessment, although the existence of an express instruction given by a parent company to its subsidiary not to participate in any anticompetitive practices in a given market can be a strong indication of the actual exercise of decisive influence by the parent over the subsidiary, the fact that the subsidiary did not comply with this instruction cannot be regarded as a strong indication of actual exercise of such influence. For that reason, the fact that a subsidiary does not comply with an instruction given by its parent company is not sufficient, by itself, to establish the absence of actual exercise of decisive influence by the parent over the subsidiary, given that it is not necessary for the subsidiary to carry out all the parent company’s instructions to demonstrate decisive influence, as long as the failure to carry out those instructions is not the norm. Lastly, the fact that it is difficult to adduce the evidence necessary to rebut a presumption of actual exercise of decisive influence does not in itself mean that that presumption is in fact irrebuttable, especially where the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity. (see paras 33, 34, 39-41, 44) 4. See the text of the decision. (see para. 55) 5. The principle of equality of treatment must be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party. (see paras 58, 59) 6. See the text of the decision. (see paras 66, 67)