Opinion of the Advocate General — ECLI:EU:C:2012:763
Date: 2012-11-29
Language of the case: Dutch
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Action for damages;Appeal - successful
Origin: Netherlands

Summary — Judgment of the Court (Third Chamber), 11 July 2013 1. Competition — Rules of the European Union — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts decisive influence over the subsidiaries in which it has a 100% or virtually 100% shareholding — Legal form of the entity holding all or virtually all the capital of another undertaking or all or virtually all of that entity’s shareholdings — No effect (Art. 81 EC; Council Regulation No 1/2003, Arts. 2 and 23(2)) 2. Competition — Rules of the European Union — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable (Art. 81 EC; Council Regulation No 1/2003, Art. 2) 3. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient (Art. 81(1) EC) 4. Agreements, decisions and concerted practices — Agreements between undertakings — Effect on trade between Member States — Criteria for assessment (Art. 81(1) EC) 5. Agreements, decisions and concerted practices — Definition of the market — Purpose — Assessment of the impact of the cartel on competition and trade between Member States (Art. 81(1) EC) 1. In competition law, the conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, the subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement. In the particular case of a parent company having a 100% or virtually 100% shareholding in a subsidiary which has infringed EU rules on competition, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over its subsidiary. In those circumstances, it is sufficient for the Commission to prove that the entire capital, or virtually the entire capital, of a subsidiary is held by the parent company in order for it to be presumed that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be entitled to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market. In order to ascertain whether a subsidiary decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list. That approach is based on the premiss that liability may be imputed to a legal entity for the conduct of another legal entity where the latter does not decide independently upon its own conduct on the market. Consequently, the fact that the entity holding all or virtually all the capital of another undertaking or all or virtually all of that entity’s shareholdings (‘the holding entity’) is constituted in the legal form of a foundation rather than a company is irrelevant. It follows that where the issue is whether an undertaking is to be penalised for infringement of competition law on the basis of Article 81 EC in conjunction with Article 23(2) of Regulation No 1/2003, it is irrelevant whether each individual legal entity comprising the undertaking is itself economically active and therefore individually constitutes an undertaking. The only decisive factor for the purpose of the penalty is that all the legal entities which are held jointly and severally liable, in whole or in part, for payment of the same fine together constitute with the entity whose direct involvement in the infringement has been established (‘the author of the infringement’) a single undertaking for the purpose of Article 81 EC. It is the actual exercise by the holding entity of decisive influence over the author of the infringement which is important in that regard. (see paras 38-45, 60) 2. See the text of the decision. (see para. 71) 3. See the text of the decision. (see para. 97) 4. See the text of the decision. (see paras 99, 100) 5. See the text of the decision. (see para. 101)