Keywords

Summary



Keywords

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules

(Arts 81 EC and 253 EC)

2. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment

(Art. 81 EC)

3. Competition – Agreements, decisions and concerted practices – Proof – Statements by employees of an undertaking made exclusively in the interest of the undertaking

(Art. 81 EC)

4. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Non‑disclosure of material relied on by the Commission by way of confirmation of an undertaking’s liability – Effect on the legality of the finding of liability – No effect

(Art. 81(1) EC)

Summary

1. Where a decision taken in application of Article 81 EC relates to several addressees and raises a problem with regard to liability for the infringement, it must include an adequate statement of reasons with respect to each of its addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, in regard to a parent company held jointly and severally liable for the infringement, such a decision must contain a detailed statement of reasons for attributing the infringement to that company.

None the less, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision.

(see paras 45, 59)

2. The conduct of a subsidiary may be attributed to the parent company in particular where that subsidiary, despite having a separate legal personality, 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, regard being had in particular to the economic, organisational and legal links between those two legal entities. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC.

In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to avail itself of the presumption that the parent exercises decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as liable for the infringement in question, 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 that regard, mere prima facie evidence cannot suffice to rebut the presumption in question.

Thus, where the parent company adduces a body of evidence to establish that its subsidiary was independent, by demonstrating that the subsidiary does not, in essence, comply with the instructions which it issues and, as a consequence, acts independently on the market, the Commission will not be able to impute to it the conduct of its subsidiary unless the Commission rebuts that evidence.

In order to assess whether a subsidiary decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company, which may vary from case to case and which cannot, therefore, be exhaustively listed. It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu , such as the distribution or pricing strategy. In particular, the presumption relating to the exercise of decisive influence cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions. It follows that the independence of the subsidiary cannot be established merely by showing that it manages the specific aspects of its policy relating to the marketing of the products concerned by the infringement. Similarly, given that the independence of the subsidiary is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent.

Moreover, the fact that the parent company’s corporate objects enable the conclusion that it constituted a holding company whose role under its statutes was to manage its shareholdings in the capital of other companies is not sufficient, in itself, to rebut the presumption in question.

In addition, the absence of overlap between the personnel involved in the operational management of the undertaking is not capable of demonstrating that its subsidiary was independent, since the assessment of that independence does not relate solely to the commercial policy stricto sensu of the undertaking.

However, an overlap between individuals on the boards of the companies concerned does constitute relevant evidence of the lack of independence of the subsidiary. The same is true of the direct participation of one of the individuals concerned in the illicit contacts. Indeed, the participation of a member of staff of the parent company in collusive meetings may amount to evidence that the parent company knew of its subsidiary’s participation in the infringement and, therefore, that it was actively implicated in the anti‑competitive conduct; that evidence can therefore be used, a fortiori , as support for the contention that it exercised decisive influence over the subsidiary.

(see paras 96-100, 104-106, 108-109, 117-118, 130, 143, 145)

3. In competition matters, the ascribing, on a case‑by‑case basis, of significant probative value to statements made in the context of a leniency application is explained by the consideration that they are an admission of infringement and therefore, as a rule, statements which run counter to the interests of the declarant. Accordingly, where statements by employees of an undertaking are made exclusively in the interest of the undertaking, they cannot be credited with particularly great probative value, comparable to that ascribed to certain statements made by the undertakings which made leniency applications, since the context of those statements is not the same as that of such a leniency application.

(see paras 156-157)

4. Where an applicant has not been afforded an opportunity, during the administrative procedure for infringement of the competition rules, to submit its observations on the material relied on by the Commission in support of its finding of the applicant’s joint and several liability, that material must be disallowed as evidence. None the less, with respect to the infringement of the rights of the defence, the applicant must still show that the result at which the Commission arrived in its decision would have been different if that undisclosed material had to be disallowed as evidence.

Where material is relied on by the Commission only by way of confirmation, the fact that it must be disallowed as evidence cannot affect the legality of the finding of the applicant’s liability, where that finding is demonstrated to the requisite legal standard by other considerations set out in the Commission’s decision.

(see paras 162-166)