Opinion of the Advocate General — ECLI:EU:C:2010:517
Date: 2010-09-14
Language of the case: Spanish
Subject matter: Competition
Procedure: Action for annulment - unfounded;Appeal - unfounded;Appeal - successful
Origin: Spain

summary assessment which it carried out at paragraphs 70 to 76 of the judgment under appeal, merely for the sake of completeness, erred in its legal appreciation of and distorted the rebuttal evidence produced by the appellants. Due to the sound and coherent nature of that evidence, an objective and impartial observer would find that GQ was independent from RQ. 43. The appellants claim that the General Court, at paragraph 71 of the judgment under appeal, manifestly distorted facts by failing to indicate that the activities of GQ predated its entry into the RQ group, that GQ’s activities were not related to those of RQ and the numerous attempts by RQ to sell GQ between 1993 and 2004. According to the appellants these elements constitute clear evidence of RQ’s lack of interest in GQ. 44. It will be recalled that, at paragraph 71 of the judgment under appeal, the General Court considered that those assertions were not sufficient to rebut the presumption in question, as parent and subsidiary companies frequently have different activities and parent companies at times sell their subsidiaries. I consider that the appellants by their claims have failed to show to the correct legal standard a distortion of the facts as they have failed to show the errors of appraisal which, in their view, led to the distortion of the facts in question. In my view, the appellants, although formally pleading an error of law, are essentially calling into question the factual assessment carried out by the General Court. Moreover, as regards the claim that the General Court failed to indicate that the activities of GQ predated its entry into the RQ group, I do not see the legal or factual relevance of such a claim given that RQ acquired all the shares in GQ between 1989 and 1993 while the infringement spans from 31 October 1999 until 30 June 2000 and thus long after GQ became the wholly owned subsidiary of RQ. 45. The appellants claim that the fact that at paragraph 72 of the judgment under appeal the General Court only referred to two issues debated at two meetings of RQ’s board of directors during an eight year period between 1998 and 2005 shows, in reality, the total absence of influence and intervention by RQ in the activities of GQ. The General Court found that the minutes of RQ’s board of directors from 1998 to 2000 set out GQ’s financial results and a resolution relating to the sale of GQ’s holding in Silquímica and to the sale of real property belonging to GQ. The General Court stated on the basis of that evidence that RQ’s board of directors plays a significant role in several essential aspects of GQ’s strategy and exerts a decisive influence on GQ’s conduct thereby rejecting the claim by the applicants at first instance that the minutes of RQ’s board of directors from 1998 to 2000 only refer to GQ’s financial results. (22) 46. In my view, the appellants in the present appeal are seeking to diminish the relevance of the references in the minutes of the board of directors of RQ between 1998 and 2000 to the sale of GQ’s holding in Silquímica and the sale of GQ’s real property. Given that the appellants failed to inform the General Court of the references in the minutes in question to the sale of GQ’s holding in Silquímica and the sale of GQ’s real property at first instance and in the absence of any demonstration that the General Court distorted the facts in question or breached the rules on burden of proof, I consider that the appellants’ argument concerning paragraph 72 of the judgment under appeal should be rejected. The appellants are essentially calling into question the factual assessment carried out by the General Court which is beyond the Court’s jurisdiction in an appeal case in the absence of distortion of facts. 47. The General Court found at paragraph 73 of the judgment under appeal that Mr [confidential] was both chairman of GQ’s board of directors from 1996 to 2000 and a member of RQ’s board of directors from 1998 to 1999. The appellants had claimed at first instance that there was no overlap in the membership of their organs in order to rebut the presumption that RYPF and RQ exercise decisive influence over GQ. The appellants in the present appeal concede that there was in fact such an overlap but that it only related to one person and was thus of a purely marginal nature. The appellants also claim that the Commission knew of the overlap during the administrative procedure but did not take that fact into account in its statement of objection or in the contested decision as a factor establishing the existence of an economic unit between RQ and GQ. 48. In my view, the appellants have failed to demonstrate that the General Court distorted the facts in question or breached the rules on burden of proof. The arguments of the appellants concerning paragraph 73 of the judgment under appeal should thus be rejected. I consider that it is not relevant for the purposes of rebutting the presumption in question, which is based solely on the ownership of 100% of the shares in a company, that the Commission did not rely on other additional factors which may in fact confirm the existence of an economic unit. 49. The appellants consider that, at paragraph 74 of the judgment under appeal, the General Court incorrectly rejected the evidence produced to the effect that only GQ’s executives decided on and implemented the company’s commercial policy as well as the claim that the information provided by GQ to RQ related only to results in accordance with budgets and strategic or commercial plans. (23) The General Court at paragraph 74 of the judgment under appeal considered that those claims could not succeed in the light of the case-law cited in the judgment under appeal. (24) 50. In my view, the General Court by merely making a reference to case-law has failed to examine, even in the most cursory manner, whether the detailed evidence adduced by the appellants at first instance could rebut the presumption in question. Indeed, it would appear from the judgment under appeal that the General Court considered, purely on the basis of the case-law cited, that such evidence cannot rebut the presumption in question. I consider that the case-law relied upon by the General Court in the judgment under appeal does not support its finding at paragraph 74 as that case-law merely refers to the possibility of imputing to a parent company the conduct of its subsidiary where the latter carried out in all material respects the instructions given to it by the parent company, having regard in particular to the economic and legal links between them. It also refers to the rebuttable presumption and the possibility for the parent company to rebut that presumption. The sections of the case-law cited therefore do not support the statement by the General Court that the evidence adduced by the appellants at first instance cannot rebut the presumption. Given the lack of any other appraisal or reasoning on the part of the General Court of the specific and detailed evidence adduced by the appellants, I consider that the General Court erred in law in its finding at paragraph 74 of the judgment under appeal. The General Court failed to given the appellants an adequate opportunity to rebut the presumption, a right which is clearly guaranteed by the case-law of the Court. (25) Moreover, the Court, in Case C‑97/08 P Akzo Nobel and Others v Commission, advocating a case-by-case approach, specifically avoided defining in advance and in a restrictive or exhaustive manner the evidence which may be assessed in order to determine whether a subsidiary determines its conduct on the market independently. In its judgment in that case the Court stated that account must be taken not only of the role of the parent company concerning, inter alia, the pricing policy and production and distribution activities of the subsidiary but also of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company. (26) Thus rather than discounting in advance any category of evidence as irrelevant for the purposes of rebutting the presumption in question or giving any particular importance to a given category, the Court in Case C‑97/08 P Akzo Nobel and Others v Commission adopted an inclusive approach regarding rebuttal evidence. This is not to say that evidence advanced in order to rebut the presumption may prove, in fact, to be wholly inadequate in that regard following its examination. 51. It follows that the findings of the General Court at paragraph 74 of the judgment under appeal must be set aside. Under Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is to quash the decision of the General Court. It may then itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. In the present case, I consider that the state of the proceedings is such as to permit final judgment in the matter. It therefore falls, in my view, to the Court to give final judgment on the matter. 52. I consider that the evidence adduced by the appellants at first instance and referred to at footnote 23 above in order to rebut the presumption in question relates to the formal competences of the directors of GQ and the independence of the latter in the day to day running of GQ. The appellants also alleged that only GQ’s financial results rather than information on its commercial policy were transmitted to RQ. In my view, the claim submitted by the appellants concerning financial information must be rejected as the General Court found at paragraph 72 of the judgment under appeal that additional information, other than GQ’s financial results, was forwarded to RQ. Moreover, while the directors of GQ may well have considerable independence in the day to day running of its business (27) and indeed have considerable formal independence, the General Court found as a matter of fact at paragraph 72 of the judgment under appeal that RQ’s board of directors plays a significant role in several essential aspects of GQ’s strategy. (28) I therefore consider after examining such factors that the appellants have failed to rebut the presumption in question. 53. The appellants consider that the General Court, at paragraph 75 of the judgment under appeal, by stating that the consolidation by RYPF of the accounts of the group supported the Commission’s claim concerning the existence of an economic unit, erred in its legal qualification of the relationship between GQ and Repsol Italia. The appellants claim that they had demonstrated that the non-exclusive agency relationship between GQ and Repsol Italia proved that GQ was commercially independent. 54. In my view, the appellants have failed to demonstrate that the General Court erred in law or distorted the facts at paragraph 75 of the judgment under appeal in rejecting the appellants’ claim at first instance that the non-exclusive agency relationship between GQ and Repsol Italia proved that GQ was commercially independent as it demonstrated a conflict of interest between GQ and its parent companies given that a price rise imposed on Repsol Italia, similarly to all other distributors, was decided unilaterally by GQ without the intervention of RQ and RYPF. The General Court found that the group consolidated its accounts, thereby concurring with the finding of the Commission in the contested decision that an increase in the price of GQ’s products does not constitute evidence of a conflict of interests between GQ and its parent companies, because any increase in GQ’s turnover resulting from a price increase of its products would also increase the turnover of RQ and RYPF. I consider that the appellants are in reality seeking to dispute the assessment of the facts undertaken by the General Court and that their claim with regard to paragraph 75 of the judgment under appeal should be rejected as inadmissible. 55. In view of the foregoing, I consider that the appellants’ first plea should be accepted in part and for the rest rejected. The action for annulment brought by the applicants before the General Court should, in my view, be dismissed. B – Second plea 56. The appellants claim that the General Court erred in law by automatically extending responsibility for an infringement by a subsidiary to the parent company at the head of a group. This was done by means of an inappropriate extension of the presumption in question based on the capacity of the parent company to exercise a decisive influence over its subsidiary. On that basis, firstly, the General Court in the present case found RYPF responsible solely on the basis that the latter did not demonstrate the autonomy of the ‘intermediary’ company RQ which in turn did not demonstrate that its subsidiary GQ was effectively autonomous. As a result of the reasoning in question, RYPF was held responsible for RQ’s inability to refute its responsibility for the behaviour of GQ. Secondly, the interpretation of the General Court would result in responsibility for the infringements committed by a subsidiary being always attributed to the parent company at the head of the group, without taking into account the concrete circumstances of the case and in particular the number of companies interposed between that subsidiary and the parent company in question, the nature of those interposed companies and their activities and the effective legal and economic links between the latter companies. 57. In that regard, the appellants claim that the judgments in Michelin v Commission (29) and Case T‑330/01 Akzo Nobel v Commission (30) do not provide for such an automatic extension of the exercise of decisive influence by the parent company at the head of the group. The Michelin v Commission case related to the possibility of taking into account as an aggravating circumstance repeated infringement by a parent company in respect of the behaviour of the different subsidiaries it controls. In Case T‑330/01 Akzo Nobel v Commission, the General Court attributed to the parent company at the head of a group the infringement committed by a subsidiary only on the basis that the latter was controlled through a pure holding company, the sole purpose of which was to hold the shares of the subsidiary. The appellants claim by contrast that in the present case RYPF is neither the parent company of GQ nor the owner of its capital. In addition, RYPF does not approve the annual accounts of GQ and does not appoint the members of its administrative body. Finally neither the nature of RQ nor its activity permit a finding that the latter is a simple intermediary through which RYPF exercises control over GQ. 58. The Commission considers that in accordance with the judgment in Stora Kopparbergs Bergslags v Commission (31) the existence of a chain of companies through which control is exercised does not affect in any manner the assessment of whether the parent company and subsidiary form an economic unit. That approach was upheld according to the Commission in the recent case-law of the General Court in Michelin v Commission (32) and Case T‑330/01 Akzo Nobel v Commission. (33) In Case T‑330/01 Akzo Nobel v Commission the General Court rejected the claim by Akzo that the presumption did not apply to it given that it was a holding company with no production or sales activity and due to the ‘remote’ or ‘indirect’ nature of its control. Moreover, according to the Commission, Advocate General Kokott in her Opinion in Case C‑97/08 P Akzo Nobel and Others v Commission (34) proposed that the Court reject the appeal brought against the judgment in Case T‑112/05 Akzo Nobel and Others v Commission, (35) a case in which control was exercised indirectly by a parent company through interposed companies. The Commission also considers that the second plea is inoperative as the sections of the judgment under appeal which demonstrate that RYPF formed an economic unit with GQ have not been challenged. 59. The appellants by their second plea have sought to distance RYPF from the infringement committed by GQ in the present case most notably by emphasising the role played by RQ in respect of GQ, such as the fact that RQ nominates GQ’s administrative body and approves the latter’s annual accounts. 60. It is settled case-law that EU competition law refers to the activities of undertakings and that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. The Court has also stated that the concept of an undertaking, in the same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement. The infringement of EU competition law must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person. It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations. (36) 61. It is clear in accordance with the settled case-law that a legal person such as a company that has not been directly involved in an infringement can nevertheless be penalised for it in certain circumstances. (37) The Court in Case C‑97/08 P Akzo Nobel and Others v Commission emphasised the fact that where a parent company and its subsidiary form a single economic unit, the parent company may be held responsible for an infringement by its subsidiary despite the fact that the parent company had no personal involvement in the infringement. (38) Thus ascertaining whether companies within a corporate group form part of a single economic unit is vital in relation, inter alia, to the question of attribution of responsibility for infringements of competition law. (39) That question has undoubtedly been rendered considerably less complex and onerous for competition law enforcement authorities such as the Commission by the rebuttable presumption that the parent company of a wholly owned subsidiary exercises a decisive influence over the latter and that they both therefore form a single economic unit. Indeed, I consider that the function of the presumption in question, as explained by Advocate General Kokott in her Opinion in Case C‑97/08 P Akzo Nobel and Others v Commission, (40) is to facilitate the effective enforcement of competition law while promoting legal certainty due to the straightforward manner in which the presumption arises. 62. I consider that a parent company (RYPF) which owns 100% of the shares of a subsidiary (RQ), which in turn owns 100% of the shares of another company (GQ), is undoubtedly capable of exercising decisive influence over the latter company (GQ) (41) and the rebuttable presumption that the parent company (RYPF) actually exercises that influence should therefore apply. The number of wholly owned companies interposed between a parent company at the head of a corporate group and the subsidiary which participated in the infringement of competition law should not prevent the presumption from arising. In cases involving a ‘chain’ of wholly owned subsidiaries, the capacity of the parent company at the head of the group to exercise decisive influence over each and every subsidiary, but particularly over the subsidiary which participated in the infringement, is not, in my view, open to question. Where a company is wholly owned by another, albeit indirectly, the presumption in question should arise as in such cases the corporate structure is not, in principle, determinative. 63. I can therefore see no reason why the presumption in question should not apply to the facts of the present case. It must again be stressed that the presumption is rebuttable. The parent company at the head of a group must be afforded an opportunity to adduce evidence to rebut the presumption that it exercises a decisive influence over the conduct of its subsidiaries. Indeed, where the parent company at the head of a group can demonstrate that the subsidiary which committed the infringement or one of the ‘interposed’ subsidiaries between the parent and the infringing subsidiary decides independently on its own conduct on the market, that will break the chain of responsibility and the parent company at the head of the group may not be held responsible for the infringement of competition law. 64. In my view, to find otherwise would jeopardise the rebuttable presumption and thus its function of ensuring the effective enforcement of competition law as parent companies could escape responsibility for the infringements in which their subsidiaries participated through corporate restructuring. (42) Such strategic corporate restructuring could also indirectly limit the power of the Commission to impose fines, thus potentially undermining the deterrent effect of fines. (43) 65. I therefore consider that the appellants’ second plea should be rejected. V – Costs 66. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, it is to make a decision as to costs. 67. Under Article 69(2) of those rules which, under Article 118 thereof, applies to appeals, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the first subparagraph of Article 69(3) of those rules, the Court may, where each party succeeds on some and fails on other heads of claim, order that each party shall bear its own costs. 68. In this case, since both the appellants and the Commission have been unsuccessful in part in their claims on the appeal, it is appropriate to decide that each of them shall bear its own costs relating to the appeal. 69. By contrast, since the action for annulment brought by the appellants has been dismissed, paragraph 2 of the operative part of the judgment under appeal must be confirmed as regards the costs relating to the proceedings at first instance. VI – Conclusion 70. I therefore consider that the Court should: – set aside the judgment of the Court of First Instance (Sixth Chamber) of 18 December 2008 in Case T‑85/06 General Química and Others v Commission in so far as it held General Química jointly and severally with Repsol Química and Repsol YPF for the infringements committed by General Química; – dismiss the rest of the appeal; – dismiss the action brought by General Química, Repsol Química and Repsol YPF for annulment of Commission Decision 2006/902/EC of 21 December 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (formerly Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corporation (formerly Crompton Corporation), General Química, Repsol Química and Repsol YPF (Case No COMP/F/C.38.443 – Rubber chemicals); – order the parties to bear their own costs relating to the appeal and General Química, Repsol Química and Repsol YPF to pay all the costs at first instance. 1 – Original language: English. 2 – Rubber chemicals are synthetic or organic chemicals that act as productivity and quality enhancers in the manufacture of rubber. The automobile sector is the largest user of rubber parts, mainly in the form of tyres. Antidegradants and accelerators are the most important rubber chemicals in terms of market value, accounting for approximately 85 to 90% of all rubber chemicals. 3 – Relating to incorrect assessment and failure to state reasons concerning the joint and several liability of GQ, RQ and RYPF. 4 – Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraphs 133 and 134. 5 – Case 107/82 AEGTelefunken v Commission [1983] ECR 3151, paragraph 50. 6 – And thus following a recent line of case-law of that court which reinterprets Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, such as Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraphs 60 and 61, and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 57. 7 – See Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 218, and Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 132. 8 – Cited in footnote 5. 9 – Cited in footnote 6. 10 – [2009] ECR I‑8237. 11 – See Case C‑97/08 P AkzoNobel and Others v Commission (cited in footnote 10), paragraphs 58 and 59 and the case-law cited therein. The corporate veil is in effect lifted in order to reveal the economic entity or undertaking responsible for an infringement. 12 – See paragraph 60 of that judgment (cited in footnote 10). In my view, the presumption in question has the merit that it is clear in nature thus facilitating legal certainty. See in that regard, Advocate General Kokott’s Opinion in Case C‑97/08 P Akzo Nobel and Others v Commission, point 71. Parent companies are thus put on notice of their possible responsibilities in certain circumstances for the actions of their subsidiaries and can accordingly take appropriate measures, which due to their 100% shareholding in those subsidiaries they have the power to take, to ensure compliance by the latter with competition law. 13 – See Case C‑97/08 P Akzo Nobel and Others v Commission, paragraph 61 (cited in footnote 10). When the presumption in question arises, I consider that the burden of proof in effect shifts to the parent company if it wishes to rebut that presumption and the onus is on it to adduce evidence to show that its subsidiary acts independently on the market. I would note that I am not aware of any case before the Court of Justice or indeed the General Court in which the presumption in question was actually rebutted. 14 – See paragraph 62 of the judgment under appeal. 15 – See Advocate General Kokott’s Opinion in Case C‑97/08 P AkzoNobel and Others v Commission (cited in footnote 10), points 90 and 91. 16 – See in particular Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), as adjusted at Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1), which is entitled ‘Right to an effective remedy and to a fair trial’ and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), which is entitled ‘Right to a fair trial’. I would draw an analogy in that regard with the case-law of the Court in the field of public procurement where the Court has considered rules of national law automatically excluding certain participants from public contracts as contrary to EU law. See Joined Cases C‑21/03 and C‑34/03 Fabricom [2005] ECR I‑1559, paragraphs 33 and 35; Case C‑213/07 Michaniki [2008] ECR I‑9999, paragraphs 63 to 69; Case C‑538/07 Assitur [2009] ECR I‑4219, paragraphs 29 to 33; and Case C‑376/08 Serrantoni and Consorzio stabile edili [2009] ECR I‑0000, paragraphs 40 to 46. 17 – See paragraph 74 (case cited in footnote 10). Contrary therefore to the claims of the appellants at point 27 above, the Court of Justice and the General Court are not required to indicate in the abstract what kind of evidence must be produced in order to rebut the presumption. 18 – It is settled case-law that the Court of Justice has no jurisdiction to establish the facts or, without exception, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where that evidence has been distorted, its appraisal therefore does not constitute a point of law which is subject, as such, to review by the Court of Justice. Where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion. Such distortion exists where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. See, to that effect, Case C‑413/08 P Lafarge v Commission [2010] ECR I‑0000, paragraphs 15 to 17 and the case-law cited. 19 – See paragraphs 58 to 63 of the judgment under appeal. 20 – See paragraphs 72 to 74 of Case C‑97/08 P Akzo Nobel and Others v Commission (cited in footnote 10). 21 – See by analogy, Stora Kopparbergs Bergslags v Commission, cited in footnote 6, paragraph 29, and Case C‑97/08 P Akzo Nobel and Others v Commission, cited in footnote 10, paragraph 50. 22 – GQ had relied on the mere reference to its financial results in the minutes in question in order to demonstrate that its managers establish and execute its strategic and commercial plans and merely provide general information to RQ. The General Court, relying on evidence submitted by the Commission in its rejoinder at first instance concerning references in the minutes in question to the sale of GQ’s holding in Silquímica and the sale of real property belonging to GQ thus considered that the evidence submitted by the Commission substantiates its findings in the contested decision with regard to the exercise of decisive influence. 23 – The appellants in their pleadings at first instance claimed that in their response to the Commission’s statement of objections they produced detailed evidence demonstrating that GQ’s executives acted formally and materially as the directors of that company and independently decided on the commercial policy of GQ. These claims were made in order to rebut the presumption in question. In that regard, the applicants referred in their reply to the Commission’s statement of objections to a number of contracts concluded and signed by the directors of GQ or the managers of GQ’s factory for the supply of raw materials, the storage of products, cooperation and technical assistance in the manufacturing of products and collective agreements between workers and management. The appellants also claimed at first instance, in order to rebut the presumption in question, that the directors of GQ established the annual budget of that company and merely gave general information on their state of execution to RQ. 24 – In that regard, I would note that the General Court at paragraph 74 of the judgment under appeal merely makes a reference to the case-law previously cited. I shall therefore, for the sake of completeness, examine all the case-law cited by the General Court prior to paragraph 74 of the judgment under appeal namely, AEGTelefunken v Commission, cited in footnote 5, paragraph 49; Stora Kopparbergs Bergslags v Commission, cited in footnote 6, paragraph 26; Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136; judgment of 15 June 2005 (Second Chamber) in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 59; Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290; and Case C‑294/98 P Metsä-Serla Oyj and Others v Commission [2000] ECR I‑10065, paragraph 28. 25 – Case C‑97/08 P Akzo Nobel and Others v Commission, cited in footnote 10, paragraphs 63 to 65. 26 – See paragraph 74 of Case C‑97/08 P Akzo Nobel and Others v Commission, cited in footnote 10. 27 – In my view, such evidence is not in itself determinative as it may or may not, depending on all the facts of the specific case, rebut the presumption in question. As Advocate General Kokott pointed out at points 89 and 90 of her Opinion in Case C‑97/08 P Akzo Nobel and Others v Commission (cited in footnote 10), while specific instructions, guidelines or rights of co-determination in terms of pricing, production and sales activities or similar aspects essential to market conduct are a particularly clear indication of the existence of the parent company’s decisive influence over its subsidiary’s commercial policy, the autonomy of the subsidiary cannot necessarily be inferred from their absence. 28 – These factors are relevant in the light of the finding of the Court at paragraph 74 of the judgment in Case C‑97/08 P Akzo Nobel and Others v Commission (cited in footnote 10), as all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company are relevant in order to ascertain whether a subsidiary determines its conduct on the market independently. 29 – Cited in footnote 24. 30 – [2006] ECR II‑3389. 31 – Cited in footnote 6. 32 – Cited in footnote 24. 33 – Cited in footnote 30. 34 – Cited in footnote 10. 35 – Cited in footnote 6. 36 – Case C‑97/08 P Akzo Nobel and Others v Commission, cited in footnote 10, paragraphs 54 to 57. 37 – See AEG Telefunken v Commission, cited in footnote 5, paragraph 49. See by analogy Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 40 et seq. 38 – See paragraph 59. 39 – Moreover, in accordance with Article 23(2)(a) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU and 102 TFEU] (OJ 2003 L 1, p. 1), the Commission may by decision impose fines on undertakings where, either intentionally or negligently, they infringe Article 101 TFEU or Article 102 TFEU. For each undertaking participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. Thus identifying the undertaking may have a bearing on the level of that fine. In addition, the fines imposed on undertakings may be increased pursuant to Article 23(2)(a) of Regulation No 1/2003 where there are aggravating circumstances such as where an undertaking repeats the same or a similar infringement after the Commission or a national competition authority has made a finding that the undertaking infringed Article 101 TFEU or 102 TFEU. See Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331. See also paragraph 28 of the Commission’s Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2). The fine imposed on an undertaking may in certain circumstances be greatly increased due to a prior infringement of competition law carried out by a subsidiary within a group. 40 – Cited in footnote 10. 41 – And RQ. 42 – While it may be possible in some cases to identify and thus discard with relative ease sham arrangements set up to avoid the operation of the presumption, I consider that in the vast majority of cases such a possibility would not be available, particularly where a wholly owned subsidiary is more than a holding company, and therefore the presumption and its advantages would be nullified. 43 – The deterrent objective of fines imposed for infringement of EU competition rules and the need to ensure that that objective is not jeopardised or frustrated by the restructuring of undertakings was recently stressed by the Court in ETI and Others, cited in footnote 37; Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraphs 22 to 29; and Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I‑10193, paragraphs 96 to 98.