Case T-360/09

E.ON Ruhrgas AG and

E.ON AG

v

European Commission

‛Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines’

Summary of the Judgment

Competition — Community 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 — Subsidiary held by a holding company — Fact not sufficient to rebut the presumption

Agreements, decisions and concerted practices — Prohibition — Agreements which continue to produce their effects after they have formally ceased to be in force — Application of Article 81 EC

Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Evidential obligations on undertakings disputing the existence of the infringement

Agreements, decisions and concerted practices — Participation of an undertaking in anti-competitive initiatives — Whether tacit approval without public distancing is sufficient to render the undertaking liable

Competition — Administrative procedure — Commission decision finding an infringement — Burden on the Commission of proving the infringement and its duration — Extent of the burden of proof

Agreements, decisions and concerted practices — Effect on trade between Member States — Criteria for assessment — Agreements or practices concerning a market characterised by the absence of any potential competition

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Intention of the parties to an agreement to restrict competition — Unnecessary criterion — Taking into account of such an intention by the Commission or the Courts of the European Union — Whether permissible

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Categorisation of an undertaking as a potential competitor — Criteria — Essential factor — Ability of the undertaking to enter the relevant market — Market characterised by a legal or de facto monopoly — Effect

Agreements, decisions and concerted practices — Prohibition — Exemption — Clause classified as an ancillary restriction — Concept of ancillary restriction — Scope — Restriction directly related and necessary to the implementation of a main operation — Objective and proportionate nature — Complex economic assessments — Judicial review — Limits — Consequences of the classification

See the text of the decision. (see paras 62-70)

Having regard to the requirements set out in Article 81(1) EC regarding effect on trade between Member States and repercussions on competition, that provision applies only to sectors open to competition. The examination of conditions of competition must be based not only on existing competition between undertakings already present on the relevant market but also on potential competition. In that regard, in the case of a national market characterised by the existence of de facto territorial monopolies, the fact that there is no legal monopoly on that market is irrelevant. In order to ascertain whether there is potential competition in a market, the Commission must examine the real concrete possibilities for the undertakings concerned to compete among themselves or for a new competitor to enter that market and compete with established undertakings. That examination on the part of the Commission must be made on the objective basis of those possibilities, with the result that it is of no consequence that those possibilities are precluded on account of a monopoly which derives directly from national legislation or, indirectly, from the factual situation arising from the implementation of that legislation. Furthermore, the purely theoretical possibility of a company’s entry into such a market is not sufficient to establish the existence of such competition. (see paras 84, 85, 102, 105, 106)

See the text of the decision. (see para. 141)

See the text of the decision. (see para. 142)

See the text of the decision. (see para. 143)

Article 81(1) EC applies only to agreements which may affect trade between Member States. An effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive. In order to assess whether an arrangement has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context. It is of little importance in that regard that the influence of a cartel on trade is unfavourable, neutral or favourable. A restriction of competition is liable to affect trade between Member States when it is likely to divert trade patterns from the course which they would otherwise have followed. Furthermore, the capability of a cartel to affect trade between Member States, that is to say, its potential effect, is sufficient for it to fall within the scope of Article 81 EC and it is not necessary to demonstrate an actual effect on trade. It is none the less necessary for the potential effect of the cartel on inter-State trade to be appreciable, or, in other words, that it be not insignificant. A cartel extending over the whole of the territory of a Member State, moreover, has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the EC Treaty is designed to bring about. As regards national markets characterised by de facto or legal monopolies, since the Commission has not established that there was potential competition on such markets, it cannot find that agreements or practices relating to those markets are capable of having an appreciable effect on trade between Member States. (see paras 151-155)

See the text of the decision. (see paras 169, 170, 173-175, 247)

See the text of the decision. (see paras 171, 172)

See the text of the decision. (see paras 176, 177)

See the text of the decision. (see paras 234, 252)

See the text of the decision. (see para. 251)

The Commission’s previous decision-making practice does not in itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Consequently, decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same. Nevertheless, observance of the principle of equal treatment, which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified, is incumbent on the Commission when it imposes a fine on an undertaking for infringement of the competition rules, as it is on any institution in carrying out all its activities. However, previous decisions by the Commission imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case. (see paras 260-262)

In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the Community competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a 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 presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for the 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 that regard, 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. That assessment should not be confined to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, merely showing that it is the subsidiary that manages those specific aspects of its commercial policy without receiving instructions is not sufficient to conclude that the subsidiary is independent. Nor, a fortiori, can it depend on whether the parent company has interfered in the day-to-day business of its subsidiary. The fact alone that the parent company is a holding company which does not interfere in its subsidiary’s operational activity is not sufficient to rule out the possibility that it exercises a decisive influence over that subsidiary. In the context of a group of companies, a holding company is a company which holds shareholdings in various companies and whose function is to ensure that they are run as one. (see paras 277-280, 283)