62006TJ0361
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
27 September 2012 (
*1
)
‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Rights of the defence — Effects in relation to third parties of a judgment annulling a measure’
In Case T-361/06,
Ballast Nedam NV, established in Nieuwegein (Netherlands), represented initially by A. Bosman and J. van de Hel, and subsequently by Bosman and E. Oude Elferink, lawyers,
applicant,
v
European Commission, represented by A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, acting as Agents, assisted initially by F. Wijckmans, F. Tuytschaever and L. Gyselen, and subsequently by Wijckmans and Tuytschaever, lawyers,
defendant,
APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative (i) application for annulment in part of that decision in so far as it sets the duration of the infringement with respect to the applicant and (ii) application for reduction of the fine imposed on the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 30 June 2011,
gives the following
Judgment
Facts
1
The applicant, Ballast Nedam NV, heads the Ballast Nedam group, which operates in the construction sector in the Netherlands. In 1995, the group acquired the road construction companies Eemsmond Wegenbouw BV and Bruil Infrastructuur BV, thereby becoming an important player in the road construction sector in the Netherlands, those activities being centralised in Ballast Nedam Grond en Wegen BV (‘BNGW’), a wholly-owned subsidiary of Ballast Nedam Infra BV (‘BN Infra’), itself wholly owned by the applicant. From 1 October 2000 onwards, the group’s road building activities were carried out directly by BN Infra. Since 14 February 2003, Ballast Nedam Nederland BV has been the intermediary company between the applicant and BN Infra.
2
By letter of 20 June 2002, British Petroleum informed the Commission of the European Communities of the alleged existence of a cartel relating to the market in road pavement bitumen in the Netherlands and submitted an application for immunity from fines under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
3
On 1 and 2 October 2002, the Commission carried out surprise inspections at the premises of certain companies. On 4 July 2003, the Commission sent requests for information to several companies, including BN Infra, to which the latter replied on 12 September 2003. On 10 February 2004 the Commission sent the applicant a request for information, to which the applicant replied on 9 March 2004.
4
On 18 October 2004, the Commission initiated the administrative procedure and adopted a statement of objections which it sent on the following day to several companies, including the applicant and BN Infra, to which the applicant replied on 20 May 2005.
5
On 13 September 2006, the Commission adopted Decision C(2006) 4090 final relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands)) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 28 July 2007 (OJ 2007 L 196, p. 40), and which was notified to the applicant on 25 September 2006.
6
The Commission stated, in the contested decision, that the companies to which it was addressed had participated in a single and continuous infringement of Article 81 EC by regularly fixing collectively, for the periods indicated, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for participating road builders and a smaller maximum rebate on the gross price for other road builders.
7
The applicant was held liable for that infringement in respect of the period from 21 June 1996 to 15 April 2002, as was its subsidiary BN Infra. The Commission presumed that it had exercised decisive influence over its subsidiaries BN Infra and BNGW during that period. A fine of EUR 4.65 million was imposed jointly and severally on the applicant and BN Infra.
Procedure and forms of order sought by the parties
8
By application lodged at the Registry of the Court on 5 December 2006, the applicant brought the present action.
9
On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put some questions in writing to the parties. The parties answered those questions within the prescribed period.
10
The parties presented oral argument and replied to the Court’s oral questions at the hearing on 30 June 2011.
11
As a member of the Sixth Chamber was unable to sit, the President of the Court designated himself to complete the Chamber pursuant to Article 32(3) of the Court’s Rules of Procedure.
12
By order of 18 November 2011, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.
13
By letters of 25 and 28 November 2011 respectively, the Commission and the applicant informed the Court that they were waiving their right to be heard afresh.
14
Consequently, the President of the Court decided to close the oral procedure.
15
The applicant claims that the Court should:
—
principally, annul the contested decision in so far as it relates to the applicant;
—
in the alternative, annul the contested decision in part, in so far as it relates to the applicant and sets the duration of the infringement, and reduce the fine imposed on applicant;
—
order the Commission to pay the costs.
16
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
17
In support of its claims, the applicant raises two pleas in law, the first alleging manifest errors of assessment and of law in imputing to the applicant liability for the infringement committed by BN Infra and BNGW and the second alleging infringement of Article 27(1) of Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), and of the rights of the defence, since the Commission had not indicated in the statement of objections that it presumed that the applicant was liable.
First plea in law, alleging errors of law and manifest errors of assessment in imputing to the applicant liability for the infringement committed by BN Infra and BNGW
Error of law resulting from taking into account solely the links of a capital nature in order to presume the parent company’s exercise of decisive influence over the commercial policy of its subsidiaries
– Arguments of the parties
18
The applicant submits that the Commission infringed Article 81 EC in imputing to it liability for the infringement committed by BN Infra and BNGW purely on the basis that they were wholly owned by it. However, the Courts of the European Union have clearly held that a 100 per cent shareholding in the capital of a subsidiary cannot, on its own, prove the existence of control by the parent company over its subsidiary (Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 28, and Case T-325/01 DaimlerChrysler v Commission [2005] ECR II-3319, paragraphs 218 and 219).
19
In the present case, the applicant did not take part in the collusive arrangements either directly or indirectly, never acted as the consulting partner of BN Infra or BNGW during the administrative procedure and expressly pointed out in its reply to the statement of objections that BN Infra had genuine autonomy. BN Infra and BNGW thus defined their commercial policy without its intervention and without any need for them to be accountable to it, since its role was, at the time of the infringement, limited to aspects of a mainly financial nature. The onus was therefore on the Commission to show that it had exercised decisive influence over the commercial conduct of BN and BNGW in the relevant market and that there was a link between that influence and the unlawful conduct.
20
The applicant submits that the Commission was not entitled to rely on very general factors, such as consolidation of financial results, merger decisions, appropriation of subsidiaries’ profits, investment, purchasing and sales policy or the appointment of their directors, in order to establish that it had exercised decisive influence over the commercial conduct of BN Infra and BNGW. Such criteria correspond to any parent company’s obligations under the Netherlands civil code, and to recognise the relevance of such factors would amount to creating an irrebuttable presumption of fault-based liability against parent companies. According to the case-law, the appropriate criterion is that of the ability of a parent company to determine its subsidiary’s commercial conduct, in terms of its distribution and price policy (Case 197/82 AEG-Telefunken v Commission [1983] ECR 3151).
21
Thus, according to the applicant, the criteria applied by the Commission in relation to the imputation of liability for the infringement committed by a subsidiary to a parent company contravene the presumption of innocence recognised by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’).
22
The Commission rejects the applicant’s arguments.
– Findings of the Court
23
The Commission considered, in the contested decision, that the participation in the collusive arrangements took place, from 21 June 1996 to 30 September 2000, via BNGW employees then, as from 1 October 2000 and until 15 April 2002, via the managing director of BN Infra. It chose to hold the applicant liable for the infringement in respect of the whole period of infringement, since it had held the entire capital of BN Infra and BNGW and was thus presumed to have in fact exercised decisive influence over them (recitals 293 to 297 of the contested decision).
24
It should be noted at the outset that competition law refers to the activities of undertakings (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 59) and that the concept of undertaking within the meaning of Article 81 EC includes economic entities which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (see Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 54 and the case-law cited). 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 (Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I-11987, paragraph 40).
25
The anti-competitive conduct of an undertaking can be imputed to another undertaking where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them (Case C-294/98 P Metsä Serla and Others v Commission [2000] ECR I-10065, paragraph 27; Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 117; and Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237, paragraph 58). Thus, the conduct of a subsidiary may be imputed to the parent company where the subsidiary does not decide independently upon its own conduct in the market but carries out, in all material respects, the instructions given to it by the parent company, since those two undertakings form an economic entity (Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraphs 133 and 134).
26
It is therefore not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking in the sense described above that the Commission is able to address the decision imposing fines to the parent company of a group of companies. It must be borne in mind that EU competition law recognises that different companies belonging to the same group form an economic entity and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not decide independently upon their own conduct on the market (Case T-203/01 Michelin v Commission [2003] ECR II-4071, paragraph 290).
27
In the specific case where a parent company has a 100% shareholding in a subsidiary which has committed an infringement, the parent company can exercise a decisive influence over the conduct of the subsidiary and, moreover, there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence (see Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 60 and the case-law cited).
28
In those circumstances, it is sufficient for the Commission to prove that a subsidiary is wholly owned by the parent company in order to presume that the parent company in fact exercises a decisive influence over that subsidiary’s commercial policy. The Commission will then be able 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 was acting independently on the market (Stora Kopparbergs Bergslags v Commission, cited in paragraph 18 above, paragraph 29, and Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 61).
29
Whilst it is true that at paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission, cited in paragraph 18 above, the Court of Justice referred, not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that the two companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the information on which the General Court had based its reasoning in that case and not to make the application of the presumption mentioned above subject to the production of additional indicia relating to the actual exercise of influence by the parent company over its subsidiary (Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 62, and Case C-90/09 P General Química and Others v Commission [2011] ECR I-1, paragraph 41).
30
The applicant submits that the approach adopted by the Commission is contrary to the presumption of innocence recognised by Article 6 of the ECHR. Under the provisions of Article 2 of Regulation No 1/2003, which reflects the presumption of innocence affirmed in Article 6(2) of the ECHR, the burden of proving an infringement of Article 81(1) EC rests on the authority alleging the infringement. As was pointed out by Advocate General Kokott in her Opinion in Akzo Nobel and Others v Commission, cited in paragraph 25 above (ECR I-8241), recourse to such a presumption of actual exercise of decisive influence by a parent company over its subsidiary does not lead to a reversal of the burden of proof, which would be problematical in the light of those provisions, but lays down the standard of proof which must be satisfied when attributing responsibility under antitrust law as between a parent company and its subsidiary. In so far as the fact that the parent company wholly owns its subsidiary permits the presumption that influence is exercised, that presumption is deemed to satisfy the requirements as to the burden of proof if the parent company does not rebut it by adducing conclusive evidence to the contrary (see, to that effect, Aalborg Portland and Others v Commission, cited in paragraph 24 above, paragraph 79). Thus, prior to the question of allocation of the burden of proof, the parties are all required to substantiate their arguments (Opinion of Advocate General Kokott in Akzo Nobel and Others v Commission, point 74, and in Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, I-8730, point 73).
31
The applicant further submits that the Commission’s interpretation of the presumption that a parent company in fact exercises decisive influence over its wholly-owned subsidiary makes it impossible to rebut that presumption.
32
It is however apparent from the case-law of the Court of Justice that, in order to rebut the presumption that a parent company which owns 100% of the capital of its subsidiary in fact exercises a decisive influence over that subsidiary, it is for the parent company to put before the Commission and then, where relevant, the Courts of the European Union, any evidence which in its view is apt to demonstrate that they do not constitute a single economic entity relating to the organisational, economic and legal links between its subsidiary and itself, links which may vary from case to case and cannot therefore be set out in an exhaustive list (Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 65, and General Química and Others v Commission, cited in paragraph 29 above, paragraphs 51 and 52). Contrary to the applicant’s submission, it is therefore a rebuttable presumption which it is for the applicant to rebut.
33
As regards the applicant’s argument that the obligations of a parent company under Netherlands law preclude rebuttal of that presumption, it should be recalled that a company cannot rely on national legislation in order to avoid the rules of European Union law, since legal concepts used in the latter must in principle be uniformly interpreted and implemented throughout the Community (Case 49/71 Hagen [1972] ECR 23, paragraph 6). In any event, having regard to all the principles referred to above concerning the existence of such a presumption and the criteria for its rebuttal, it is apparent that the elements relating to the obligations of parent companies towards their subsidiaries under Netherlands law reinforce the presumption applied by the Commission to the applicant as regards the applicant’s control over BN Infra and BNGW.
34
Finally, the applicant claims that the Commission attached too much importance to very formal and general factors in order to show that it had exercised decisive influence over BN Infra and BNGW.
35
It must first of all be recalled, in that regard, that the additional indicia of the actual exercise of the applicant’s decisive influence over the conduct of its subsidiaries provided by the Commission constitute further evidence, which, over and above the presumption derived from the fact that the applicant held all the capital of its subsidiaries, confirmed that it was capable of exercising decisive influence over its subsidiaries’ conduct and did in fact make use of that power, not that the applicant did actually participate in the infringement in question (Case C-176/99 P ARBED v Commission [2003] ECR I-10687, paragraph 20; see also Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 62).
36
Moreover, as was recalled in paragraph 32 above, the Courts of the European Union consider that, when assessing whether there is a single economic entity between the parent company and its subsidiary, they must take account of all the evidence adduced by the parties relating to the organisational, economic and legal links between them, the nature and importance of which may vary according to the specific features of each case (Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 65). Although certain circumstances, such as consolidation of the accounts at the group level, are irrelevant (General Química and Others v Commission, cited in paragraph 29 above, paragraph 108), other elements, such as close personal links between the parent company and its subsidiary or the capacity of the parent company to reorganise the tasks assigned to its various subsidiaries, while not alone capable of establishing the existence of a single economic entity, may none the less constitute as a whole a body of sufficient consistent evidence.
37
It follows from all of the foregoing that the Commission did not err in law by finding that, since the applicant, the 100% parent company of BN Infra and BNGW, exercised decisive influence over them, it was liable for the infringement which they had committed.
Manifest errors of assessment in imputing to the applicant liability for the infringement committed by BN Infra and BNGW
– Arguments of the parties
38
The applicant submits that the Commission made manifest errors of assessment having regard to the particular circumstances on which it sought to rely in the contested decision in order to impute to it liability for the infringement committed by BN Infra and BNGW.
39
It states, at the outset, that the presumption of actual exercise of decisive influence did not apply to BNGW at the time of the administrative procedure and that, in the contested decision, with regard to BNGW, the Commission confined itself to mentioning the internal reorganisation of the road building business in 2000. It therefore submits that the other evidence put forward by the Commission at the stage of the judicial proceedings is inadmissible.
40
According to the applicant, the Commission thus wrongly took account of the composition of its board of management, limited to two people, since that factor serves only to show that it was not in a position to control the conduct of BN Infra and BNGW on the market, in view of the group’s very numerous activities. Similarly, the Commission misconstrued the functions of the ‘Concern Council’, which groups together its board of management and the general directors of the group’s big departments (‘clusters’) and which discusses only strategic matters affecting the whole of the group. The presence of BN Infra and BNGW representatives on that body is actually an indication of the independent positioning within the group of those two companies, which are thus able to defend their autonomy. The Commission also erred in fact by considering that the BN Infra employee who participated in the cartel meetings as from October 2000 was a member of the Concern Council during the period of infringement, whereas he joined it only in February 2004, at the time of his appointment to the post of managing director of BN Infra. Similarly, the fact that it is established at the same address as BN Infra is irrelevant, since the two companies are housed in different buildings. Finally, the reorganisation of the group’s road building business in 2000 does not give any indication as to the absence of commercial autonomy of BN Infra, since any parent company is entitled to reorganise its group.
41
The applicant further states, as it did in its reply to the statement of objections, that it is merely a financial holding company and that BN Infra and BNGW are individually responsible for the commercial, financial and legal aspects of their operation as well as for their personnel policy. They are required to submit a business plan to the applicant, in which only the general outlines of their strategy and financial forecasts are set out. Some of their decisions are, in addition, subject to its authorisation, but in fields completely unconnected with commercial policy. Netherlands company law also requires any parent company to maintain certain relations with its subsidiaries, in particular as regards the appointment of the directors by the shareholders’ general meeting, decision-making relating to the appropriation of profits, the drawing up of consolidated accounts on the basis of financial reports from the subsidiaries or decisions to alter the structure of the group.
42
BN Infra has thus been, since October 2000, completely free to decide upon its commercial conduct, in particular as regards the purchasing of raw materials, since only tenders concerning works with a certain value or a specific risk profile are submitted to a contract committee in which the applicant participates. Moreover, BN Infra is required to request authorisation from the applicant’s board of management only in the event of the conclusion of cooperation agreements falling outside its normal business activity.
43
Similarly, until October 2000, BNGW was free to decide upon the conclusion of contracts for road construction works, except for works with a value exceeding a certain threshold, which were submitted to the contract committee, but which accounted for only a negligible share of its turnover. Furthermore, BNGW was required to send to the applicant’s board of management quarterly only its financial results, and it never mentioned individual projects. Finally, the BNGW management performed functions in other companies of the group, including BN Infra, only for a very limited period, in 2000, and the fact that the BNGW employee who had participated in the cartel meetings became BN Infra’s commercial director from October 2000 has no bearing on the degree of autonomy enjoyed by BNGW until that date.
44
The Commission submits that the applicant has failed to rebut the presumption of actual exercise of decisive influence on its part over the commercial conduct of BN Infra and BNGW and that, in any event, several matters mentioned in the contested decision show, in the alternative, that the applicant in fact exercised decisive influence over the policy of BN Infra and of BNGW.
45
Moreover, in the reply, the Commission submits that the applicant had put forward certain evidence intended to rebut the presumption of actual exercise of decisive influence on its part over the commercial conduct of BN Infra and BNGW for the first time in the application, which is contrary to the Court’s case-law (Case T-330/01 Akzo Nobel v Commission [2006] ECR II-3389, paragraph 89). However, in answer to a question put by the Court relating to the judgment of the Court of Justice in Case C-407/08 P Knauf Gips v Commission [2010] ECR I-6371, paragraphs 89 to 92, the Commission stated that it no longer objected to the admissibility of the applicant’s arguments seeking to rebut that presumption.
46
Finally, the Commission submits that, if the Court were to rule admissible the evidence put forward for the first time before it by the applicant and intended to rebut that same presumption, the Court should allow the Commission to respond to those arguments during the judicial proceedings.
– Findings of the Court
47
It is necessary, in examining the complaints that the Commission made manifest errors of assessment by imputing to the applicant liability for the infringement committed by BN Infra and BNGW, to determine whether the applicant has adduced evidence capable of rebutting the presumption that those three companies constituted a single economic entity.
48
First, it must be recalled that, according to the case-law, as regards the application of Articles 81 EC and 82 EC, there is no requirement under the law of the European Union that the addressee of the statement of objections must challenge the various matters of fact or law in it during the administrative procedure or otherwise be barred from doing so later at the stage of the judicial proceedings, since such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence (Knauf Gips v Commission, cited in paragraph 45 above, paragraphs 89 to 92).
49
As to whether the Commission was also entitled to adduce further evidence relating to the existence of a single economic entity between the applicant and BNGW at the stage of the judicial proceedings, it must be recalled that, in an action for annulment brought under Article 230 EC, although the Commission cannot, in support of the contested decision, produce new inculpatory evidence not contained in the decision, it is nevertheless entitled to respond to the applicant’s arguments where the applicant seeks to establish, on the basis of documents other than those produced by it to the Court, that the Commission’s assertion is incorrect in fact (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraphs 175 and 176). Moreover, the Court of Justice has already recognised that the author of a contested decision is entitled to provide explanations at the stage of the judicial proceedings in order to supplement a statement of reasons which is already adequate in itself, since those explanations may serve a useful purpose in relation to review by the Courts of the European Union of the adequacy of the grounds of the decision, since they enable the institution to explain the reasons underlying its decision (Case C-298/98 P Finnboard v Commission [2000] ECR I-10157, paragraph 46).
50
It must therefore be concluded that, in the present case, the Commission was entitled to respond to the arguments put forward by the applicant at the stage of the judicial proceedings seeking to rebut the presumption of the exercise of decisive influence on its part over the commercial conduct of BNGW.
51
Primarily, it should be pointed out that, under recitals 293 to 297 of the contested decision, the Commission explained that it was entitled to apply the presumption of the exercise of decisive influence by the applicant over BNGW in the period from 21 June 1996 to 30 September 2000, then over BN Infra in the period from 1 October 2000 to 15 April 2002. Next, it considered that a number of elements relating to the structure of the group reinforced that presumption. Thus, the applicant’s board of management consists of only two people who, together with the general directors of the big clusters, form the Concern Council, of which the BN Infra employee who had participated directly in the cartel since 2000 was a member. Moreover, the Commission noted that the applicant and BN Infra were established at the same address. Lastly, it drew attention to the institutional powers to organise the group which the applicant had and which it exercised in 2000, in particular, by reorganising the road building business.
52
In the first place, although the applicant submits that the Commission ought to have relied on evidence with which to assess its role in the anti-competitive conduct in question in order to find that it could be liable for the infringement committed by its subsidiaries, it must be recalled that, according to the case-law, the control exercised by the parent company over its subsidiaries does not necessarily have to have a connection with the unlawful conduct (see paragraph 26 above and Akzo Nobel and Others v Commission, cited in paragraph 25 above, paragraph 59, and General Química and Others vCommission, cited in paragraph 29 above, paragraphs 38, 102 and 103). It is not therefore necessary to examine whether the applicant in fact exercised influence over the unlawful conduct of BN Infra and BNGW.
53
In the second place, the evidence submitted by the applicant for the purpose of establishing that it had not exercised decisive influence over the commercial conduct of BN Infra and BNGW is not capable of rebutting the presumption of the exercise of such influence. The argument that its board of management is composed of only two people, making it difficult to monitor the group’s numerous activities, cannot suffice on its own to rebut that presumption, since it does not prove that the applicant had relinquished the exercise of its supervisory power over BN Infra and BNGW. Similarly, the applicant’s assertions that the presence of the managing directors of BN Infra and BNGW on the Concern Council constituted an indication of the independent positioning of those companies within the group’s organisation cannot suffice to prove that it allowed them complete autonomy to decide on their conduct in the market, particularly as the existence of the Concern Council in itself shows that the applicant was closely involved in determining the strategic objectives of its subsidiaries. Moreover, the fact that BN Infra and BNGW largely conducted an autonomous commercial policy, below a certain threshold, does not in itself undermine the finding that, as a 100% shareholder, the applicant in fact exercised decisive influence over the commercial conduct of BN Infra and BNGW. That argument is not conclusive for rebutting the presumption that it in fact exercised decisive influence above that same threshold. Lastly, the fact that the management of BNGW fulfilled functions in other group companies, including BN Infra, only for a very limited period cannot suffice to prove the autonomy of BNGW vis-à-vis the applicant. That argument does not add anything capable of rebutting the presumption in respect of the period during which the management of BNGW fulfilled those functions.
54
In the third place, the applicant claims that it was merely a financial holding company standing apart from the operational activities of BN Infra and BNGW. The notion of holding company covers various situations but, generally speaking, a holding company can be defined as a company which has shareholdings in one or more companies with a view to controlling them (Case T-69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II-2567, paragraph 60). Although the presumption of the actual exercise of decisive influence may, in principle, be called into question where a parent company behaves as a pure financial holding company, it is apparent from the file that, in the present case, the applicant did not behave as such. Thus, the general meeting of shareholders of the applicant was responsible for appointing the directors of the subsidiaries and approving a number of important strategic decisions of the latter, such as appropriation of profits, legal proceedings, bank loans, investments or cooperation with other undertakings. Similarly, the existence of the Concern Council indicates that the applicant was closely involved in determining the strategic objectives of its subsidiaries and the structure of the group, as shown, moreover, by the restructuring of the road building business in 2000. Lastly, the subsidiaries were required to submit quarterly to the applicant numerous items of information, such as business plans, tenders for works exceeding a certain amount and their financial reports. All of those factors demonstrate that the applicant’s role went beyond that of a mere financial holding company.
55
In any event, it is clear from all of those factors, and in particular from the existence of significant economic and organisational links between the applicant and its subsidiaries, that the Commission was right in concluding that the latter had no autonomy and that, accordingly, a single economic entity existed.
56
The fact that the applicant and BN Infra are established at the same address, albeit in different buildings, and appear under the same name vis-à-vis third parties may also be evidence which, when supported by other evidence, gives grounds for finding that there is a single economic entity. Finally, the fact that the BN Infra employee who had directly participated in the cartel meetings as from October 2000 joined the Concern Council in 2004, namely after the end of the period of infringement, is further evidence of the existence of hierarchical links and close relations between BN Infra and the applicant. In that regard, it must be pointed out that, contrary to what the applicant asserts, the Commission made no mention, in the contested decision, of the fact that that employee formed part of the Concern Council during the period of infringement.
57
It follows from all of the foregoing that the evidence submitted by the applicant at the administrative stage and during the judicial proceedings is not capable of rebutting the presumption that, by holding 100% of the capital of BN Infra and BNGW, it in fact exercised decisive influence over them. The conclusion in the contested decision that the applicant constituted together with BN Infra and BNGW an undertaking within the meaning of Article 81 EC must therefore be confirmed, without there being any need to determine whether the applicant influenced the unlawful conduct of BN Infra and BNGW.
Second plea in law, alleging infringement of Article 27(1) of Regulation No 1/2003 and of the rights of the defence
Arguments of the parties
58
The applicant maintains that, by omitting to mention in the statement of objections that it presumed the applicant’s liability by relying on the fact that the applicant in fact exercised decisive influence over BNGW during the period from 21 June 1996 to 1 October 2000, the Commission infringed Article 27(1) of Regulation No 1/2003 and its rights of defence. It therefore submits that the amount of the fine should be reduced in proportion to the duration of the infringement and accordingly be set at EUR 1 213 650.
59
The Commission did not mention in the statement of objections that it considered BNGW to be a subsidiary of BN Infra, or that it was of the view that the applicant had exercised decisive influence over BNGW. Article 27(1) of Regulation No 1/2003 and the Courts of the European Union however require that the addressee of the statement of objections be afforded the opportunity to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Aalborg Portland and Others v Commission, cited in paragraph 24 above, paragraph 66).
60
The applicant submits that the mere mention of BNGW on two occasions in the statement of objections (point 342 and footnote No 518) is not sufficient. On the one hand, the Commission wrongly described BNGW as the legal predecessor of BN Infra and, on the other, did not, at any time, describe BNGW as an independent legal entity which took part in the cartel and over whose commercial policy the applicant exercised decisive influence. Likewise, the mere reiteration by the Commission of the general rules relating to the imputation to parent companies of infringements committed by their subsidiaries cannot be a substitute for the identification of the subsidiaries in question. Finally, the applicant is of the view that the fact that it made reference to BNGW in a general manner in its reply to the statement of objections is not sufficient for the Commission to be considered to have satisfied the requirements laid down by the cases-law as regards the content of the statement of objections (ARBED v Commission, cited in paragraph 35 above, paragraph 23, and Joined Cases C-65/02 P and C-73/02 P ThyssenKrupp v Commission [2005] ECR I-6773, paragraph 85).
61
Moreover, at the hearing, the applicant maintained that, in any event, it cannot be required to pay the fine if the Court decides, in Case T-362/06, to annul the contested decision in so far as it concerns the imputation of the conduct of BNGW to BN Infra, since the liability of a parent company cannot exceed the liability of its subsidiary.
62
The Commission disputes all of the applicant’s arguments. At the hearing, in response to the applicant’s arguments concerning the consequences of a possible partial annulment of the contested decision in Case T-362/06, the Commission submitted that the fine imposed on the applicant should be upheld in any event, since the Commission has a wide discretion as regards which entities within an undertaking it considers liable for an infringement.
Findings of the Court
– Infringement of the rights of the defence
63
Article 27(1) of Regulation No 1/2003 is worded as follows:
‘Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by [it] the opportunity of being heard on the matters to which [it] has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings.’
64
According to consistent case-law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 10, and Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 67). Likewise, according to settled case-law, given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person (see Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I-1365, paragraphs 143 and 146; ARBED v Commission, cited in paragraph 35 above, paragraph 21; and Akzo Nobel v Commission, cited in paragraph 45 above, paragraph 87). It is also necessary that the statement of objections indicate in which capacity an undertaking is called upon to answer the allegations (Joined Cases C-322/07 P, C-327/07 P and C-338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I-7191, paragraph 39).
65
It should however be borne in mind that, according to the case-law, the decision is not necessarily required to be an exact replica of the statement of objections (Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 68). Consequently, only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts must the rights of the defence be found to have been infringed (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 26 and 94, and Joined Cases T-39/92 and T-40/92 CB and Europay v Commission [1994] ECR II-49, paragraphs 49 to 52). That is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint (Joined Cases T-191/98, T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II-3275, paragraph 191).
66
In that regard, it must be pointed out that, in order to assert that there was an infringement of the rights of the defence with regard to the complaints made in the contested decision, it is not sufficient for the undertakings concerned to point to the mere existence of differences between the statement of objections and the contested decision without explaining precisely and specifically why each of those differences constitutes, in the circumstances, a new complaint upon which they were not given the opportunity to comment (Atlantic Container Line and Others v Commission, cited in paragraph 65 above, paragraph 192). According to the case-law, a breach of the rights of the defence must be examined in relation to the specific circumstances of each particular case, since it depends essentially on the objections raised by the Commission in order to prove the infringement which the undertakings concerned are alleged to have committed (Case T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 70).
67
The applicant submits that, in the present case, the Commission did not satisfy its obligations by omitting to mention in the statement of objections that it presumed its liability by relying on the fact that it had exercised decisive influence over BNGW during the period from 21 June 1996 to 1 October 2000.
68
In the statement of objections, the Commission first of all pointed out that each group of undertakings concerned constituted a single undertaking and that the parent company of the group was in a position to exercise decisive influence over the conduct of its subsidiaries (point 324). Next, it stated that the applicant had participated in the cartel through the managing director of BNGW (point 236 of the statement of objections), then through BN Infra (point 339 of the statement of objections) and that, since the applicant controlled the entire capital of BN Infra (previously Ballast Nedam Wegenbouw BV and BNGW) through the intermediary entity Ballast Nedam Nederland, it presumed the exercise of decisive influence by the parent company over the conduct of those two subsidiaries. Lastly, the Commission adduced certain additional evidence for the existence of a unitary undertaking between the applicant and BN Infra (point 340 of the statement of objections). On the basis of all of that evidence, the Commission decided that the statement of objections should be addressed to BN Infra for its direct participation (and the participation of its predecessors) in the arrangements and to the applicant for its participation through the actual exercise of decisive influence over the conduct of BN Infra (point 342 of the statement of objections).
69
It is clear from all those considerations that, even though the wording used in the statement of objections could have been clearer, in particular as regards the relationship between BN Infra and BNGW, the Commission gave the applicant enough information for an understanding of the facts and circumstances used in support of its allegation that there had been an infringement, and specified unequivocally the legal persons on whom fines might be imposed. The mere fact that the Commission did not provide in the statement of objections any additional evidence for the existence of a unitary undertaking between the applicant and BNGW is not sufficient for it to be held not to have clearly indicated its intention to apply the presumption of the actual exercise of decisive influence by the applicant over the commercial conduct of BN Infra and BNGW. The Court accordingly takes the view that, on the basis of the information contained in the statement of objections, the applicant could not have been unaware that it was likely to be the addressee of a final Commission decision in its capacity as the parent company of BNGW.
70
Moreover, it must be observed that, in reply to that allegation made in the statement of objections, the applicant asserted, in its reply to the statement of objections, that BN Infra was not the successor of BNGW, but its 100% parent company and put forward arguments to show that BNGW was autonomous.
71
In those circumstances, the Court is of the view that the applicant was enabled, from the stage of the statement of objections, to understand the scope of the Commission’s objection regarding its participation in the infringement in its capacity as the parent company of BNGW and thus to conduct its defence properly.
– Effects of the annulment in Case T-362/06
72
The applicant argued at the hearing that, if it was considered to form, together with BN Infra, a single undertaking within the meaning of Article 81 EC, a reduction in the fine imposed on BN Infra would have the consequence that the fine imposed jointly and severally on it as the parent company should also be reduced.
73
In any event, and without there being any need to rule on the admissibility of those arguments, it should be pointed out that the annulment by the Court, in Case T-362/06, of Article 1(a) of the contested decision in so far as it imputed the unlawful conduct of BNGW to BN Infra from 21 June 1996 to 1 October 2000 is due to the fact that the Commission infringed the rights of defence of BN Infra by failing to inform it, in the statement of objections, that it held it liable for the infringement committed by BNGW in its capacity as the parent company of BNGW, and not in its capacity as legal successor. Although the Court held that the Commission had thus infringed the rights of defence of BN Infra, it did not, on the other hand, conclude that there was no unlawful conduct on the part of BNGW.
74
It is apparent from the contested decision (recital 295) that the Commission presumed the applicant’s exercise of decisive influence over BNGW on the basis that the applicant indirectly held its entire capital.
75
The applicant cannot, therefore, maintain that the Commission was not in a position either to impute to it the unlawful conduct of BNGW for the period from 21 June 1996 to 1 October 2000 or to order it jointly and severally to pay the fine. According to settled case-law, the Commission has a margin of discretion in deciding which entities within an undertaking it considers liable for an infringement (Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, paragraph 154, and Michelin v Commission, cited in paragraph 26 above, paragraph 290). Nothing, therefore, precludes the applicant from being held solely liable for the conduct of BNGW.
76
It must, lastly, be observed that the applicant has not disputed the existence of the infringement committed by BNGW for the period from 21 June 1996 to 1 October 2000 and that, in accordance with paragraph 57 above, it has not succeeded in rebutting the presumption that, by holding 100% of the capital of BNGW, it in fact exercised decisive influence over it.
77
It follows from the foregoing that the applicant’s line of argument as to the consequences of the partial annulment of the contested decision in Case T-362/06 must be rejected.
78
The second plea in law must thus be rejected and, as a result, the action must be dismissed in its entirety.
Costs
79
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Ballast Nedam NV to pay the costs.
Jaeger
Wahl
Soldevila Fragoso
Delivered in open court in Luxembourg on 27 September 2012.
[Signatures]
Table of contents
Facts
Procedure and forms of order sought by the parties
Law
First plea in law, alleging errors of law and manifest errors of assessment in imputing to the applicant liability for the infringement committed by BN Infra and BNGW
Error of law resulting from taking into account solely the links of a capital nature in order to presume the parent company’s exercise of decisive influence over the commercial policy of its subsidiaries
– Arguments of the parties
– Findings of the Court
Manifest errors of assessment in imputing to the applicant liability for the infringement committed by BN Infra and BNGW
– Arguments of the parties
– Findings of the Court
Second plea in law, alleging infringement of Article 27(1) of Regulation No 1/2003 and of the rights of the defence
Arguments of the parties
Findings of the Court
– Infringement of the rights of the defence
– Effects of the annulment in Case T-362/06
Costs
(
*1
)	Language of the case: Dutch.