The subsidiary’s conduct on the market is, in general, also under the decisive influence of the parent company where the latter retains only the power to define or approve certain strategic commercial decisions, where appropriate by its representatives in the bodies of the subsidiaries, while the power to define the commercial policy stricto sensu of the subsidiary is delegated to the managers responsible for its operational management, chosen by the parent company and representing and promoting the parent company’s commercial interests.

In competition matters, the conduct of a subsidiary may be imputed to the parent company, on the ground that they belong to the same undertaking, where that subsidiary does not decide independently upon its conduct on the market, because it is under the decisive influence of the parent company in that respect.

In order to impute the anti-competitive conduct of a joint venture to the two parent companies which hold it in equal shares, the Commission cannot, in application of Article 81 EC, rely on the mere ability to exercise decisive influence, such as that applied in the context of the application of Regulation No 139/2004 when establishing control, without its being necessary to ascertain whether that influence was in fact exercised. On the contrary, it is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual evidence. Such evidence includes the accumulation of posts by the same natural persons in the management of the parent company and that of its subsidiary or joint venture, or the fact that those companies were bound to follow the instructions issued by their single management and could not adopt conduct on the market independently of it.

Moreover, the effective exercise of decisive influence by one or more parent companies on the commercial conduct of the joint venture can also be demonstrated by examining the way in which decisions are taken within the latter. Even if the power or the possibility to determine the commercial decisions of the joint venture does arises, as such, solely from the mere ability to exercise decisive influence over its commercial policy and thus from the concept of ‘control’ within the meaning of Regulation No 139/2004, the Commission and the Courts of the European Union may presume that the legislative provisions and the terms of the agreements relating to the functioning of that undertaking, in particular the terms of the contract setting up the joint venture and the shareholders’ agreement on votes, were implemented and observed. To that extent, examination of the actual exercise of decisive influence over the commercial conduct of the joint venture may consist in an abstract analysis of the documents signed before it began to function, like the analysis concerning control. However, since the examination relating to the actual exercise of decisive influence is retrospective and may therefore be based on specific evidence, both the Commission and the parties concerned may adduce evidence that the commercial decisions of the joint venture were determined according to different procedures from those arising solely from the abstract examination of the agreements relating to the functioning of the joint venture.

The parent companies’ influence on the operational management of the joint venture, exercised through the members of the management board of the joint venture whom they had appointed, is wholly relevant for the appraisal of the existence of an economic unit between the parent companies and the joint venture. However, that the Commission has not adduced any firm evidence to show that the joint venture had been managed in close collaboration by the two parent companies and that the decisions taken within the management board reflected the will of each of the parent companies held liable. Such a finding could not be deduced from the abstract examination of the agreements relating to the functioning of the joint venture. Nor has the Commission produced any concrete evidence in that respect, such as, for example, minutes of board meetings.

It follows that, where one of the two parent companies has adduced relevant evidence that there was no joint management of the joint venture, the Commission cannot, in order to establish such joint management, base its assessment merely on the terms of the joint venture agreement.

(see paras 101, 102, 107, 108, 114, 115, 119, 123, 124)