Case T‑436/10

(publication by extracts)

HIT Groep BV

v

European Commission

‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price-fixing, market-sharing and exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Rules on the imputability of the anti-competitive practices of a subsidiary to its parent company — Presumption of actual exercise of decisive influence — Reasonable time’

Summary — Judgment of the General Court (Sixth Chamber), 15 July 2015

Competition — Union rules — Infringement committed by a subsidiary — Imputation to the parent company — Joint and several liability for payment of the fine — Scope — Parent company and subsidiary having formed, during part of the infringement period, an undertaking for the purposes of Article 101 TFEU and having ceased to exist in that form on the day on which a decision imposing a fine was adopted — Consequences for the determination of the amount of the fine

Competition — Fines — Amount — Determination — Adjustment of the basic amount — Leniency rules — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Conditions — Parent company and subsidiaries — Need for economic unity at the time of the cooperation

Competition — Fines — Amount — Determination — Adjustment of the basic amount — Maximum amount — Calculation — Turnover to be taken into consideration — Turnover for the business year immediately preceding the date on which the fine was imposed — Business year characterised by the transfer of a series of assets — Recourse to the turnover of another earlier business year representing the last full year of normal economic activity — Admissibility in the case of a holding company

Competition — Fines — Amount — Determination — Adjustment of the basic amount — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic entity acting as an undertaking at the date on which the decision imposing the fine was adopted

Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries, including in the case of a holding company — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption

Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — No need to specify all the relevant factual and legal elements

See the text of the decision. (see paras 117-131, 147, 148)

See the text of the decision. (see para. 132)

See the text of the decision. (see para. 133)

In the matter of infringement of the competition rules, where a parent company owns 100% of its subsidiary’s capital during the infringement period in respect of which it has held liable, the Commission is entitled to rely on the presumption of actual exercise of decisive influence and was not required to adduce further evidence in that respect. Thus, the irrelevance of further evidence put forward by the Commission has no impact on the parent company’s liability, since the presumption of actual exercise of decisive influence is sufficient to render it liable, unless it is in a position to rebut that presumption. In that regard, the fact that the parent company is a holding company, even a non-operational holding company, is not sufficient to rebut the presumption of actual exercise of decisive influence and does not entail any reversal of the burden of proof. The fact that, because of the type of company it is and the objects defined in its statutes, the parent company confines itself to managing its shareholdings, is irrelevant. In addition, attribution to the parent company of the unlawful conduct of the subsidiary does not require proof that the parent company influenced its subsidiary’s policy in the specific area in which the infringement occurred. Nor, consequently, is the fact that the parent company itself was not active in that sector sufficient to rebut the presumption of actual exercise of decisive influence. The presumption of actual exercise of decisive influence cannot be rebutted merely be showing that the subsidiary managed its commercial policy stricto sensu, such as distribution or pricing strategy, without receiving instructions from the parent company in that regard. Nor, therefore, can the independence of the subsidiary be established merely by showing that it managed the specific aspects of its policy relating to the marketing of the products concerned by the infringement. Since the subsidiary’s autonomy cannot be assessed solely by reference to the aspects of the operational management of the undertaking, the fact that the subsidiary never implemented a specific information policy in favour of its parent company on the relevant market cannot suffice to demonstrate that it was independent. (see paras 138-142, 144, 145)

For the effective enforcement of the competition rules, it may become necessary, by way of exception, to attribute a cartel offence not to the initial operator but to the new operator of the undertaking involved, if the new operator may in fact be regarded as the successor to the original operator, that is if he continues to operate the undertaking involved in the cartel. Thus the ‘economic continuity’ test can apply only where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed or where there have been internal restructurings within an undertaking where the initial operator does not necessarily cease to have legal existence but no longer exercises an economic activity on the market concerned and in the light of the structural links between the initial operator and the new operator of the undertaking. Consequently, the ‘economic continuity’ criterion is in particular not applicable where a parent company and its subsidiary no longer form part of the same group but have not ceased to exist and there has been no internal restructuring in the context of which the parent company would have structural links with the buyer. The penalising of infringements of competition law and the fine imposed for such an infringement have both a deterrent and a punitive effect and the penalty continues to be binding on the parent company even though it has limited its economic activity but has retained a legal existence that still allows it to be penalised. (see paras 150, 151, 153, 155)

See the text of the decision. (see para. 161)

See the text of the decision. (see paras 174-177)

As regards the ‘preceding business year’ within the meaning of the second subparagraph of Article 23(2) of Regulation No 1/2003, it refers, in principle, to the last complete business year for the undertakings concerned at the date on which the decision was adopted. The application of the 10% upper limit thus presupposes, first, that the Commission has at its disposal the turnover figure for the last business year preceding the date of adoption of the decision and, second, that those data represent a full year of normal economic activity over a period of 12 months. Whilst, for the purposes of calculating the upper limit of the fine provided for in Article 23(2) of Regulation No 1/2003, the Commission must, in principle, take into account the turnover achieved by the undertaking concerned in the last full business year at the date of adoption of the decision imposing the fine, it is apparent from the context and the objectives pursued by the legislation of which that provision forms part that where the turnover in the business year preceding the adoption of the Commission’s decision does not represent a full year of normal economic activity over a period of 12 months and, thus, does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of fine to impose on it, that turnover cannot be taken into account in fixing the upper limit of the fine. In the latter situation, which will arise only in exceptional circumstances, the Commission is obliged, for the purposes of calculating the upper limit of the fine, to refer to the last full business year corresponding to a full year of normal economic activity. In so far as the normal activity of a holding company consists in acquiring shares, owning them, receiving interest and selling those shares, the fact that a company of that type has confined itself to maintaining a small financial reserve and a minimal turnover cannot suffice to constitute conclusive evidence of the existence of normal economic activity on the part of that company. (see paras 178-180, 185)

In the matter of infringement of the competition rules, only an undertaking which has cooperated with the Commission on the basis of the Leniency Notice can be granted, under that notice, a reduction of the fine that would have been imposed without that cooperation. That reduction cannot be extended to a company which, for part of the duration of the infringement in question, had formed part of the economic unit constituted by an undertaking, but no longer formed part of it at the time when the undertaking cooperated with the Commission. In the light of the objective pursued by the Leniency Notice, consisting in promoting the detection of conduct contrary to EU competition law, and in order to ensure effective application of that law, there is nothing to justify extending a fine reduction granted to an undertaking in respect of its cooperation with the Commission to an undertaking which, while having controlled, in the past, the area of activity involved in the infringement in question, did not itself contribute to the detection of the infringement. (see para. 196)

In the case of infringement of the competition rules, where a parent company has not materially participated in the cartel and its liability is based solely on its subsidiary’s participation in the cartel, the parent company’s liability is to be analysed as purely derivative and secondary and as depending on that of its subsidiary, and cannot therefore exceed that of the subsidiary. However, that principle is without prejudice to the circumstance that, when the amount of the fine is being calculated, where two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking for the purposes of Article 101 TFEU on the date of adoption of a decision imposing a fine on them, elements specific to each of them may be taken into consideration. Thus, in such a case, each of those separate legal persons is entitled to have the 10% maximum amount applied individually to itself. The same applies as regards the possible benefit of leniency, which cannot be claimed by a company which, during part of the period of the infringement in question, had formed part of the economic unit constituted by an undertaking, but no longer did so at the time when the undertaking cooperated with the Commission. In that regard, in so far as possible differences in the duration of the infringement found respectively against a parent company and its subsidiary are duly taken into account when calculating the base amount of the fines, a possible levelling effect of the application of the ceiling of 10% of their turnover and a possible reduction in the amount of the fine granted to one of them does not infringe the principle of equal treatment, even if the final amount of the fine imposed on the parent company, despite the shorter duration of the infringement found against it, were to be higher than the fine imposed on its subsidiary. Similarly, an infringement of the principle of proportionality cannot arise from the mere allegation of a difference in the final amount of the fines imposed, respectively, on the parent company and its subsidiary. (see paras 213-216, 225-228)

See the text of the decision. (see paras 238-241, 259, 260)