OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 3 September 2015 ( 1 )

Case C‑155/14 P

Evonik Degussa GmbH,

AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH

v

European Commission

‛Appeal — Agreements, decisions and concerted practices — Markets for calcium carbide powder, calcium carbide granulates and magnesium granulates in a substantial part of the EEA — Price fixing, market sharing and exchange of information — Presumption of decisive influence — Rebuttal — Conduct of a subsidiary which is contrary to the instructions of its parent company’

1. The present case concerns an appeal brought by Evonik Degussa GmbH (‘Degussa’) and AlzChem AG ( 2 ) (‘Alzchem’) against the judgment of the General Court of the European Union in Evonik Degussa and AlzChem v Commission ( 3 ) (‘the judgment under appeal’).

2. This case gives the Court another opportunity to rule on the issue of the imputation to a parent company of the anticompetitive conduct of its subsidiary. The Court is called upon in particular to clarify further the conditions under which it is possible to rebut the presumption of actual exercise of a decisive influence (the ‘shareholding presumption’) which has been developed in case-law for the purposes of imputing to a parent company infringements of the competition rules committed by a subsidiary in which it holds the entire capital or virtually the entire capital.

3. The fundamental question in the present case is whether the shareholding presumption is rebutted where evidence is adduced that a wholly-owned subsidiary which was about to be sold participated in a cartel in a manner blatantly at odds with the express and precise instructions given by its parent companies not to engage in such anticompetitive activities. As well as clarifying the conditions under which the shareholding presumption is open to rebuttal, the present case will also enable the Court to throw some light on the methodology to be used when analysing the evidence and arguments relied on in order to rebut that presumption.

I – Background to the dispute

4. By Decision C(2009) 5791 of 22 July 2009 ( 4 ) (the ‘contested decision’), the European Commission found that the main suppliers of calcium carbide and magnesium for the steel and gas industries had infringed Article 81(1) EC (now Article 101(1) TFEU) and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating in a single and continuous infringement from 22 April 2004 until 16 January 2007. ( 5 ) The Commission had initiated the procedure that culminated in the adoption of the contested decision following an application for immunity submitted by Akzo Nobel NV under the Notice on immunity from fines and reduction of fines in cartel cases (the ‘Leniency Notice’). ( 6 ) The appellants also submitted an application for leniency under the same notice.

5. In the contested decision, the Commission found that the appellants had participated in the infringement for a period of four months from 22 April to 30 August 2004. ( 7 ) They were found liable for the infringement exclusively on account of the direct participation in that infringement of members of staff of SKW Stahl-Technik GmbH & Co. KG (‘SKW’), ( 8 ) which, during that period, was a subsidiary wholly owned by the appellants. ( 9 ) On 30 August 2004, the appellants sold SKW to Arques Industrie AG, now Gigaset AG ‘Gigaset’), ( 10 ) with economic effect retroactive to 1 January 2004.

6. On account of their participation in the infringement, the Commission, in Article 2(g) and (h) of the contested decision, imposed on the appellants, first, a fine of EUR 1.04 million to be paid jointly and severally with SKW and, secondly, a fine of EUR 3.64 million for the payment of which they were held jointly and severally liable.

7. In that decision, the Commission also imposed a joint and several fine on SKW and its new parent company, Gigaset, for their participation in the infringement during the subsequent period from 1 September 2004 to 16 January 2007.

II – The procedure before the General Court and the judgment under appeal

8. By application lodged at the Registry of the General Court on 5 October 2009, the appellants sought to have the contested decision annulled in so far as it concerns them and, in the alternative, to have the amount of their fine reduced and the contested decision varied.

9. By the judgment under appeal, the General Court upheld the action in part. First, it held that the Commission had committed an error by increasing the fine imposed on AlzChem on account of repeated infringement. ( 11 ) Next, it found that, by opting for the lowest level of fine reduction provided for in the Leniency Notice, ( 12 ) the Commission had infringed that Notice. ( 13 ) It then held that, by using in the calculation of the fine a multiplier of 0.5 for participation in the infringement over a period of six months, even though the appellants had participated in it for only fourth months, the Commission had infringed the principle of proportionality. ( 14 ) Finally, it found that, by failing to take account of an entrance fee when calculating SKW’s joint and several liability, the Commission had infringed the principle of equal treatment. ( 15 ) The General Court dismissed the action as to the remainder.

10. In those circumstances, the General Court, first of all, annulled Article 2(g) and (h) of the contested decision in so far as it concerned the appellants.

11. Next, in paragraphs 287 to 289 of the judgment under appeal, the General Court, exercising its unlimited jurisdiction, varied the fines imposed on the appellants for their participation in the infringement and imposed the following fines: ( 16 ) — on the appellants jointly and severally: EUR 2.49 million, subject to the qualification that they will be deemed to have satisfied the payment of that fine up to the amount paid by SKW in respect of the fine which was imposed on it in the contested decision; — on Degussa independently, EUR 1.24 million.

III – The procedure before the Court of Justice and the forms of order sought by the parties

12. By their appeal, the appellants claim that the Court should: — set aside the judgment under appeal in so far as it affects them and annul the contested decision in so far as it concerns them; — in the alternative, reduce the fines imposed on them in the contested decision and, in the further alternative, amend the contested decision so that SKW is jointly and severally liable for the full amount of the fines imposed on the appellants; — in the yet further alternative, set aside the judgment under appeal and refer the case back to the General Court; and — order the Commission to pay the costs of the proceedings.

13. The Commission contends that the Court should: — dismiss the appeal; — order the appellants to pay the costs of the proceedings.

14. The parties set out their respective positions in writing and at the hearing, which was held on 4 June 2015.

IV – Analysis

15. In support of their appeal, the appellants rely on five grounds of appeal, the fourth and fifth of which are raised in the alternative.

16. At the hearing, however, the appellants stated in response to a question that, in the light of the judgment given by the Court, after they had lodged their appeal, in Commission and Others v Siemens Österreich and Others, ( 17 ) they were withdrawing their second ground of appeal. ( 18 )

A – The first ground of appeal, alleging infringement of Article 81 EC and of the principles of personal responsibility, the presumption of innocence and that liability presupposes fault

1. Arguments of the parties

17. By their first ground of appeal, which concerns paragraphs 70 to 119 of the judgment under appeal, the appellants submit that the General Court infringed Article 81 EC, the principles of personal responsibility and the presumption of innocence and the principle that liability presupposes fault, in so far as it wrongly imputed to them the anticompetitive conduct of their subsidiary, SKW, even though, in a very special set of circumstances, they had exceptionally succeeded in rebutting the shareholding presumption. In dismissing their arguments, the General Court applied an incorrect criterion to the rebuttal of that presumption, imposed excessively strict requirements and disregarded the rebuttable nature of that presumption.

18. First of all, the appellants criticise the General Court for having wrongly rejected, in paragraphs 102 to 107 of the judgment under appeal, their argument that the fact that SKW had participated in the cartel at issue in disregard of their explicit instructions not to participate in that type of activity demonstrates that they did not exercise a decisive influence over SKW. Thus, conduct akin to that of a ‘rogue subsidiary’ which is blatantly at odds with the parent company’s instructions, such as SKW’s conduct in the present case, demonstrates that there is no decisive influence and therefore clearly rebuts the shareholding presumption.

19. Furthermore, the General Court’s findings, in paragraphs 106 and 107 of the judgment under appeal, with respect to the sworn statements of Messrs S ( 19 ) and N, ( 20 ) at the material time managing director (‘Vorstand’) of AlzChem and commercial director of SKW, respectively, disregard the scope of the attribution of liability under Article 81 EC. In imputing the infringing conduct to the appellants, the General Court relied on a mere hypothetical influence over SKW, whereas it is settled case-law that liability may not be attributed on the basis of the potential for decisive influence alone, but requires that such influence actually be exercised. In order to establish that influence is actually exercised, it is necessary not only that the parent company issue an instruction, but also that the subsidiary carry it out. The General Court thus imputed the infringement on the basis of no-fault objective liability, in breach of the principles of personal responsibility and the presumption of innocence as well as the principle that liability presupposes fault.

20. Furthermore, the appellants dispute the analysis contained in paragraphs 101 and 102 of the judgment under appeal, to the effect that, on the basis of the finding that their previous links with SKW had not been changed in any way in 2004, the General Court rejected their assertion that, in 2004, they did not exercise a decisive influence over SKW. In their submission, that assessment is vitiated by two errors. First, the General Court confined itself to assessing the relationships between SKW and the appellants from the point of view of the allocation of shares and the leadership structure, but did not analyse how exactly those relationships were organised. Secondly, the appellants do not have to prove any change in their links with SKW, since they have never exercised a decisive influence over that subsidiary.

21. Finally, the appellants allege that the General Court was wrong to dismiss their argument that they did not exercise a decisive influence over SKW, given that SKW managed its business independently, that its economic activity had never formed part of their core operational activities and that they themselves had from day one been engaged in arranging its sale. More specifically, in paragraphs 84 to 87, 88 and 89, 95 to 97 and 108 to 113 of the judgment under appeal, the General Court relied exclusively on the theoretical influence which the appellants may have exercised over SKW in order to impute the infringement to them; in paragraphs 93, 94 and 98 of the judgment under appeal, it misapplied the burden of proof; and, in paragraphs 84 to 87, it distorted evidence.

22. The Commission takes the view that the fact that the parent company gave instructions confirms the general relationship of hierarchical superiority between it and the subsidiary and, therefore, the existence of links demonstrating that they form a single economic entity. The failure to comply with instructions not to participate in cartels which are contrary to the competition rules is not sufficient to rebut the shareholding presumption. This is simply a one-off case of failure to follow instructions. Furthermore, the existence of a single economic entity is apparent from an overall assessment. According to the Commission, there is nothing to stop the General Court drawing from a period pre-dating the conduct at issue, in this instance the period prior to 1 January 2004, conclusions with respect to the period of the infringement. What is more, the shareholding presumption was confirmed by a series of additional indications and considerations which are in no way speculative.

2. Analysis

a) Preliminary observations

23. It is settled case-law that an infringement of the competition rules by a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, the subsidiary 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, having regard in particular to the economic, organisational and legal links between those two legal entities. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines on the parent company, without having to establish the personal involvement of the latter in the infringement. ( 21 )

24. In the particular case of a parent company having a 100% or virtually 100% shareholding in the subsidiary which has committed the infringement, there is a rebuttable presumption (the shareholding presumption) that the parent company does in fact exercise decisive influence over its subsidiary. ( 22 )

25. In those circumstances, it is sufficient for the Commission to prove that the entire capital, or virtually the entire capital, of a subsidiary is held by the parent company in order for it to be presumed that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then 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. ( 23 )

26. In order to rebut the shareholding presumption, it is for a parent company to put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are apt to demonstrate that they do not constitute a single economic entity. ( 24 ) In order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to those links that tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list. ( 25 )

27. Thus, when examining the evidence adduced with a view to rebutting the shareholding presumption, the General Court is required to assess any evidence relating to the organisational, economic and legal links between the parent company and its subsidiary that is apt to demonstrate that the subsidiary operated independently of its parent company and that those two companies did not constitute a single economic entity. ( 26 ) While certain evidence, taken in isolation, may not be sufficient to rebut the presumption in question, all the evidence adduced by the parent company must be assessed as a whole in order to determine whether that body of evidence is sufficient to rebut the presumption. ( 27 ) In that context, account must be taken of the consequences which those links between the parent company and the subsidiary have, in practical economic terms, on the actual conduct of those undertakings on the market. ( 28 )

28. In that connection, it must nonetheless be recalled that, on appeal, it is not for the Court of Justice to re-examine all of the evidence and substitute its assessment for that of the General Court. The General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, secondly, to assess those facts. However, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them. ( 29 )

29. The line of argument advanced by the appellants in support of their first ground of appeal, which is exclusively concerned with the General Court’s analysis dismissing the arguments put forward by them in order to rebut the shareholding presumption, must be examined in the light of those principles.

b) The ‘deductive’ methodology used by the General Court

30. It is necessary first of all to analyse the complaint, mentioned in point 20 of this Opinion, challenging the approach taken by the General Court in paragraphs 101 and 102 of the judgment under appeal. This is a preliminary complaint since it calls into question the methodology employed by the General Court in the reasoning on the basis of which it dismisses the arguments relied on by the appellants in order to rebut the shareholding presumption.

31. In the judgment under appeal, before examining in detail the various arguments put forward by the appellants in order to rebut the shareholding presumption, the General Court made the preliminary point that, at the hearing, the appellants had submitted that they had never exercised a decisive influence over SKW since acquiring it in February 2001, and that that was particularly true of the period after 1 January 2004, during which they had focused on the negotiations relating to the sale of SKW. ( 30 )

32. On that premise, the General Court carried out a two-stage analysis of the arguments put forward by the appellants.

33. First, in paragraphs 79 to 99 of the judgment under appeal, the General Court assessed those arguments in relation to the period prior to 1 January 2004. Following that assessment, it concluded, in paragraph 99 of the judgment under appeal, that there was nothing in the appellants’ line of argument or in the documents before it to show that, prior to 1 January 2004, they did not exercise a decisive influence over SKW’s commercial policy.

34. Secondly, in paragraph 101 of that judgment, the General Court found that it was not apparent from the documents before it — nor had the appellants even claimed — that the organisational, economic and legal links that had previously tied them to their subsidiary were in any way changed in 2004.

35. Consequently, in paragraph 102 of the judgment under appeal, the General Court, applying what might be described as a ‘deductive methodology’, elected, in the absence of any change in the links between SKW and the appellants, to transpose the conclusions it had drawn with respect to the period prior to 1 January 2004 to the period after that date, which included the period of the infringement affecting the appellants, that is to say from 22 April to 30 August 2004, the date on which SKW was definitively sold to Gigaset. In that same paragraph, the General Court thus concluded that the appellants’ assertion that they did not exercise a decisive influence over SKW in 2004 could not be accepted.

36. The appellants challenge the line of reasoning followed by the General Court in paragraphs 101 and 102 of the judgment under appeal and submit, first, that the General Court failed to take account of the true nature of the links between them and SKW and, secondly, that, in order to rebut the shareholding presumption, they were by no means required to demonstrate that, in 2004, there had been a change in the organisational, economic and legal links between them and SKW.

37. In that regard, it should be recalled that, as is clear from the case-law mentioned in paragraphs 23 to 25 of this Opinion, the imputation to a parent company of an infringement committed by a subsidiary is based on the finding that, in the light, in particular, of the organisational, economic and legal links between those two entities, they constitute a single economic entity at the time when the infringement is committed and, thus, a single undertaking for the purposes of Article 81 EC.

38. It is therefore at the time when the infringement is committed that those two undertakings must constitute an economic entity in order for the infringing conduct of the subsidiary to be imputable to the parent company, and it is therefore with reference to the period of the infringement that it is necessary to examine the links between the parent company and the subsidiary and how they work in practice in order to establish whether, at the time when the infringing conduct took place, the former actually exercised a decisive influence over the latter.

39. By the same token, the infringement may be imputed to the parent company in accordance with the shareholding presumption (the presumption that decisive influence is actually exercised) if that parent company holds the entire capital (or virtually the entire capital) of the subsidiary during the period of the infringement. ( 31 ) Consequently, in order to rebut that presumption, it is with reference to the period of the infringement, and not to any another period, that the parent company must adduce sufficient evidence to show that it and its subsidiary did not at that time constitute a single economic entity.

40. It follows from all the foregoing that the analysis of the actual exercise of a decisive influence must be based on the period of the infringement and that it is thus, in principle, in relation to that period that the Commission and the General Court must assess the evidence adduced by the parent company in order to rebut the shareholding presumption.

41. The foregoing considerations do not, however, rule out the possibility for the Commission or the General Court to reason deductively when making their assessment. After all, it is not inconceivable that, in certain specific cases, conclusions concerning an earlier period will also apply in respect of a later period.

42. Nevertheless, where there is a wish to proceed by way of a deductive methodology, the latter must be employed with caution. After all, such an approach must not disregard the fact that the determination of whether the parent company actually exercised a decisive influence over the subsidiary must be carried out with reference to the period of the infringement. It follows that any conclusions drawn with respect to the true nature of the organisational, economic and legal links between those two entities at a given point in time cannot automatically be transposed to another period. On the contrary, they must necessarily be assessed in the factual context specific to the relevant period, that is to say the period of the infringement, which is not necessarily the same as the context for an earlier period.

43. It need hardly be pointed out that, in the present case, the factual context relevant to the period prior to 1 January 2004 and that relevant to the period thereafter, which included the period of the infringement, were not the same. After all, as the appellants have submitted on a number of occasions, the factual context in the period following 1 January 2004, unlike that in the period prior to that date, was characterised by the existence of negotiations relating to the sale of SKW in which the appellants were fully engaged.

44. In those circumstances, and in the light of the considerations set out in points 41 and 42 of this Opinion, I take the view that the General Court would have committed an error if, in applying the deductive methodology, it had automatically transposed to the period of the infringement the conclusions it had reached with respect to the links that existed between the appellants and SKW prior to 1 January 2004 without assessing those links in the factual context specific to the period of the infringement.

45. In this regard, I note that a reading of the first sentence of paragraph 102 of the judgment under appeal might give the impression, at first sight, that the General Court, applying its deductive reasoning, reached the conclusion that the appellants had actually exercised a decisive influence over SKW during the period following 1 January 2004 exclusively on the basis of the conclusions which it had reached in paragraph 101 of the same judgment.

46. I nonetheless consider that a combined reading of paragraphs 102 to 107 of the judgment under appeal supports the view that that was not actually the case and that the General Court carried out an analysis of the conclusions it had drawn with respect to the links that existed between the appellants and SKW during the period prior to 1 January 2004 within the particular factual context which the appellants had claimed to be specific to the period of the infringement. It is clear from those paragraphs that the General Court considered the arguments advanced by the appellants in connection with the true nature of the organisational, economic and legal links within the context of the sale process in the thick of which SKW found itself, which, the appellants argue, had created the power vacuum in which SKW’s conduct was blatantly at odds with the instructions of its parent companies occurred.

47. Finally, I feel bound to mention the contradiction in the appellants’ line of argument, inasmuch as, on the one hand, they claim never to have exercised a decisive influence over SKW while, on the other hand, they refer to a ‘power vacuum’ created by the process of selling SKW which allowed SKW to behave as it did.

48. It follows, in my view, from the foregoing considerations that the complaint relating to paragraphs 101 and 102 of the judgment under appeal, mentioned in point 20 of this Opinion, must be rejected.

c) The conduct blatantly at odds with the parent company’s instructions

49. Next, it is necessary to analyse the appellants’ complaint to the effect that the General Court committed an error in failing to find that conduct on the part of a subsidiary which is blatantly at odds with its parent company’s explicit instructions not to engage in anticompetitive practices, such as SKW’s conduct in the present case, demonstrated that the parent company does not exercise a decisive influence over the subsidiary, and thus rebutted the shareholding presumption. The appellants refer in particular to the analysis carried out by the General Court, in paragraphs 106 and 107 of the judgment under appeal, with respect to the statements made by Messrs S and N, mentioned in point 19 of this Opinion, and accuse the General Court of having imputed the infringement simply on the basis of hypothetical influence.

50. In the present case, it is common ground that, in both 2002 and 2004, the appellants specifically instructed SKW not to participate in anticompetitive agreements on the market at issue. Nor is it disputed that that instruction was disregarded by SKW’s executive and that its participation in the cartel for which the appellants were penalised therefore occurred in breach of that explicit and precise instruction.

51. In the judgment under appeal, the General Court took the view, in paragraphs 90 to 92, that the fact that the appellants had given such an instruction constituted an additional indication that they exercised a decisive influence over the subsidiary. Then, in paragraphs 106 and 107 of that judgment, the General Court analysed the abovementioned statements of Messrs S and N and took the view that they did not show that, in 2004, the appellants no longer exercised a decisive influence over SKW.

52. In that regard, I must start by making the point that it is in principle true that the fact that a parent company gives instructions to a subsidiary may, generally speaking, constitute an indication capable of being taken into account in the analysis to determine whether a decisive influence has actually been exercised. ( 32 ) However, it follows from the case-law mentioned in point 23 et seq. of this Opinion, first, that a decisive influence must actually be exercised and, secondly, that a subsidiary may be considered not to decide independently upon its own conduct on the market when it carries out, in all material respects, the instructions given to it by its parent company. It is therefore, in principle, the carrying out of the instructions which determines the actual exercise of a decisive influence. Furthermore, it follows from the considerations set out in point 27 in fine of this Opinion that the true nature of the conduct of the parent company and the subsidiary cannot be left out of account when analysing the links between them.

53. To my mind, the foregoing supports the inference that, in a situation in which it is common ground that a specific one-off instruction given by a parent company was manifestly not observed by the subsidiary, the mere fact that that instruction was given cannot be regarded as an indication of the actual exercise of a decisive influence, as the General Court held in paragraphs 90 to 92 of the judgment under appeal. ( 33 ) On the contrary, the fact that the instruction was not observed is, to my mind, an indication that a decisive influence was not actually exercised.

54. That said, the question raised by the appellants is whether a manifest breach by a subsidiary of explicit and precise instructions given by the parent company not to participate in anticompetitive activities on a particular market is, in itself, capable of rebutting the presumption that a decisive influence was actually exercised.

55. It should be recalled in this regard that, in the judgment in Schindler Holding and Others v Commission, ( 34 ) the Court held that the non-observance of instructions issued by parent companies to their subsidiaries, as part of ‘compliance programmes’, not to engage in anticompetitive business practices does not prevent the liability for the cartel offences committed by their subsidiary from being imputed to the parent companies. ( 35 )

56. I must observe, however, that the present case differs from the case which gave rise to the judgment in Schindler Holding and Others v Commission. Unlike the directives given under a compliance programme and forming part of a general plan aimed at preventing infringements of competition law within the undertaking, the instruction which, in this case, was given by the appellants in 2002 and, in particular, in 2004 was specific and precise and concerned conduct on a particular market. ( 36 ) It follows that that case-law is not necessarily automatically applicable to the present case.

57. In my opinion, the present case also differs from what are commonly known as ‘rogue employee’ cases (to which the appellants implicitly referred by describing SKW as a ‘rogue subsidiary’), where the Court has been presented with the argument, aimed at avoiding the imputation of the infringing conduct, that the infringement of the competition rules was attributable to the individual actions of a number of (rogue) employees considered in isolation. ( 37 )

58. Although there may be some analogy between the situation of a ‘rogue employee’ and that of a ‘rogue subsidiary’, ( 38 ) the two do not appear to me to be necessarily comparable. Thus, rogue employee cases involve the imputation to the undertaking of activities of which the undertaking’s principal managers were unaware but which, having been carried out by employees authorised to act on the undertaking’s behalf, took place within its area of responsibility. ( 39 ) To impute to the parent company an infringement committed by a ‘rogue subsidiary’, on the other hand, is to impute to a given legal entity infringements committed by a different legal entity. For instances of such imputation, the EU judicature has developed in its case-law a special criterion — the actual exercise of decisive influence — indicating the existence of a single economic unit. ( 40 ) Only if that special criterion is satisfied can infringing conduct committed by one legal entity be imputed to another. The present case must therefore be analysed by reference to that criterion.

59. In this regard, it should be recalled that, as I stated in points 26 and 27 of this Opinion, it is settled case-law that the analysis to establish whether the shareholding presumption has been rebutted presupposes an assessment of the entire body of evidence adduced by the parent company.

60. What is more, it is clear from the case-law referred to in point 23 of this Opinion that a subsidiary does not decide independently upon its own conduct on the market where it carries out, in all material respects, the instructions given to it by the parent company. ( 41 ) In the same vein, the Court recently confirmed that, in order for decisive influence to exist, it is not necessary for the subsidiary to carry out all the parent company’s instructions, as long as the failure to carry out instructions is not the norm, which must be assessed in the light of all of the evidence available to the General Court. ( 42 )

61. The conclusion as to the existence in a parent company and a subsidiary of a single economic entity such as to support the attribution to the former of liability for the infringing conduct of the latter does not therefore presuppose that the subsidiary carries out all the instructions given by the parent company without exception. It is sufficient for the subsidiary to carry out such instructions in all material respects. ( 43 ) It follows that the non-observance of a specific one-off instruction given by a parent company to a subsidiary, however indisputably important that instruction may be, cannot, in and of itself, demonstrate the autonomy of the subsidiary on the market and is not therefore sufficient, in and of itself, to rebut the shareholding presumption. Only if the analysis of the entire body of evidence adduced shows that the subsidiary’s non-observance of the instructions issued by the parent company was the norm can the shareholding presumption be regarded as being rebutted.

62. In the present case, however, the General Court did not find that there had been a general failure by SKW to follow instructions given by the appellants which would have proved that the subsidiary decided upon its conduct on the market on a wholly independent basis. It cannot be denied that the breach of instructions committed by SKW was significant and constituted a serious infringement of the directives issued by its parent companies. However, although such an infringement is indeed a significant factor that must be taken into consideration in the overall examination of the evidence adduced to rebut the shareholding presumption, it is not sufficient in and of itself to rebut that presumption. ( 44 )

63. As for the specific assessment of the statements mentioned in point 19 of this Opinion, I would submit that, since the appellants have not claimed that there has been a distortion of the evidence, it is not for the Court of Justice to call into question the assessment of that evidence by the General Court or the value attributed to it by the General Court in its analysis. ( 45 ) In this connection, I would simply observe that the General Court took the view that those statements did not demonstrate that the appellants no longer exercised a decisive influence over their subsidiary and were therefore incapable of rebutting the shareholding presumption on which the attribution of liability to the appellants was based. Thus, when the appellants state that the reasoning contained in paragraph 106 of the judgment under appeal, which, in their contention, demonstrates a hypothetical influence at the very most, is not sufficient to attribute liability to them, their position is unsound, since they overlook the fact that the infringement was imputed to them in accordance with the shareholding presumption, as, moreover, I shall explain in greater detail in point 70 et seq. of this Opinion.

64. It follows from all the foregoing that the complaint that conduct by a subsidiary which is blatantly at odds with explicit instructions given by its parent company rebuts the shareholding presumption must also be rejected.

d) The General Court’s application of an excessively restrictive criterion which renders the shareholding presumption irrebuttable

65. The appellants accuse the General Court of having used an incorrect criterion in attaching excessively stringent requirements to the rebuttal of the shareholding presumption, thus rendering that rebuttal impossible in breach of Article 101 TFEU and of various other principles. In particular, they claim that the General Court imputed the infringement to them on the basis of a hypothetical influence, even though they had demonstrated that they had never actually exercised a decisive influence over their subsidiary. In this context, the appellants refer to a number of paragraphs from the judgment under appeal in which, they argue, the General Court wrongly dismissed their arguments in accordance with that incorrect criterion.

66. In this regard, the preliminary point must be made that, although, in the context of appeal proceedings, the Court is not authorised, other than in the event of distortion, to call into question the assessment of the facts, ( 46 ) it may, however, review the General Court’s legal characterisation of the facts, including, in accordance with settled case-law, the question of whether the General Court took the right legal criteria as the basis for its appraisal of the facts and the evidence. ( 47 ) Thus, it is only in so far as the appellants submit that the General Court applied an incorrect legal criterion when assessing the evidence relied on to rebut the shareholding presumption that their argument is admissible. ( 48 )

67. In the present case, it is common ground that, during the period of the infringement, the appellants, either directly or indirectly, held the entirety of the capital in SKW, with the result that the Commission was entitled to apply the shareholding presumption in the contested decision. In that decision, the Commission made reference to certain facts which confirmed that presumption, in relation to both AlzChem ( 49 ) and Degussa. ( 50 ) Next, in recitals 237 to 244 in the preamble to the contested decision, the Commission rejected the arguments relied on by the appellants in order to rebut the shareholding presumption. ( 51 )

68. The General Court analysed the arguments relied on by the appellants in paragraphs 70 to 119 of the judgment under appeal, although it did not distinguish between the arguments that sought to challenge the additional evidence which, in the Commission’s view, confirmed the shareholding presumption and those that directly sought to rebut that presumption.

69. The appellants accuse the General Court of having rejected their arguments on a number of occasions purely on the basis of the theoretical possibility of a decisive influence, even though the crucial question is whether that influence was actually exercised. Thus, in their arguments, they refer in particular to the General Court’s analysis, in paragraphs 84 to 87 of the judgment under appeal, of SKW’s obligation to report to AlzChem, in paragraphs 88 and 89, of the right which AlzChem reserves to approve a number of SKW’s business decisions, in paragraphs 95 to 97, of SKW’s saleability, and, in paragraphs 108 to 113, of the relevance of SKW’s turnover. In its reasoning in relation to all those arguments, the General Court rejected the appellants’ arguments on the basis of the theoretical influence which they may exercise over SKW, but was unable to demonstrate the actual exercise of a decisive influence.

70. In my view, the appellants’ line of argument overlooks the fact that the attribution of liability to them was based on the shareholding presumption, ( 52 ) and that, in accordance with the case-law mentioned in points 26 and 27 of this Opinion, it fell to them to adduce sufficient evidence to demonstrate that they had not exercised a decisive influence over SKW during the period of the infringement. The appellants start from the undemonstrated premise that they have proved that they do not actually exercise a decisive influence and that, accordingly, it is not sufficient for the General Court to reject their arguments exclusively on the basis of a theoretical influence.

71. The position adopted by the appellants is therefore, in my opinion, unsound. This is particularly apparent, for example, from their assertion, in relation to the analysis of AlzChem’s reserved right of approval, that the General Court cannot rely on a potential theoretical influence in order to reject an argument that there is no actual influence, or their contention, in reference to the argument concerning the relevance of SKW’s turnover, that the General Court must ‘rebut’ the argument that there was no actual influence.

72. When the shareholding presumption is applied, the General Court does not have to respond to the arguments advanced by the parent company by itself proving that a decisive influence was actually exercised. On the contrary, it is for the parent company to adduce sufficient evidence to demonstrate that its subsidiary conducts itself independently on the market. As is clear from the case-law mentioned in points 26 and 27 of this Opinion, the General Court must analyse the entirety of that evidence in order to establish whether it demonstrates that, contrary to what is assumed to be the case on the basis of the shareholding presumption, the parent company did not actually exercise a decisive influence over the subsidiary.

73. With specific regard to the General Court’s analysis in paragraphs 84 to 87 of the judgment under appeal, concerning SKW’s obligation to report to AlzChem, the appellants submit that, in inferring the existence of actual influence from a mere reporting obligation, the General Court distorted the evidence.

74. There is a distortion of evidence where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect. ( 53 )

75. In this regard, I must say that, while I accept, as the appellants submit, that the supposition, contained in paragraph 87 of the judgment under appeal, that, in the light of the flow of information between AlzChem and SKW, the former intervened to modify decisions adopted by the latter would be a speculative conclusion, it is apparent from the case-law that a flow of information between a parent company and its subsidiary, and in particular, therefore, a ‘reporting’ obligation such as that which is apparent from the replies given by SKW and Degussa, cited in paragraphs 83 and 84 of the judgment under appeal, constitutes an indication of the exercise of control over the subsidiary’s decisions. ( 54 ) It follows, in my opinion, that the General Court did not distort the evidence when, in paragraph 87 of the judgment under appeal, it confirmed the Commission’s assessment, in the third indent of recital 229 in the preamble to the contested decision, that the existence of those reports constituted an additional indication which confirmed the shareholding presumption.

76. With regard to the reasoning contained in paragraphs 93, 94 and 98 of the judgment under appeal, the appellants contend that the General Court misapplied the burden of proof in relation to rebuttal of the shareholding presumption. In their submission, it fell to them to prove not that their decisive influence was necessarily ruled out but only that, in the situation in question, they did not actually exercise any influence. It is sufficient to point out in this regard, however, that, in the paragraphs of the judgment to which that argument refers, the General Court did not in any way reverse the burden of proof, but simply took the view that the arguments adduced by the appellants were not sufficient in themselves to rebut the shareholding presumption or were not relevant for that purpose.

77. Finally, with regard to the argument that the specific application of that presumption adopted by the Commission and confirmed by the General Court rendered that presumption irrebuttable, it is sufficient to recall that it follows from the case-law of the Court of Justice that the fact that it is difficult to adduce the necessary evidence to the contrary in order to rebut a presumption does not, in itself, mean that that presumption cannot in fact be rebutted. ( 55 )

78. In the light of all those considerations, the complaint that the General Court applied an excessively restrictive criterion which renders the shareholding presumption irrebuttable must also be rejected. Consequently, the first ground of appeal must be dismissed in its entirety.

B – The third ground of appeal, alleging infringement of the obligation to state reasons and the principle of equal treatment

1. Arguments of the parties

79. By their third ground of appeal, directed against paragraphs 287 to 289 of the judgment under appeal, the appellants submit that the General Court infringed the principle of equal treatment, their right to be heard and its obligation to state reasons.

80. First, in paragraphs 272 to 275 of the judgment under appeal, the General Court found that the Commission had wrongly omitted to take account of an entrance fee when calculating SKW’s overall joint and several liability and had therefore infringed the principle of equal treatment as well as the principles governing the determination of joint and several fines. Secondly, as is clear from the parallel judgment on the action brought by SKW ( 56 ) and as the appellants had alleged in their reply, the Commission should also not have applied a leniency reduction in SKW’s fine because the application for leniency made by the appellants did not relate to SKW and SKW had not made an application for leniency of its own. If the Commission had not made those errors, the fine imposed on SKW in respect of the first part of the infringement would have been considerably higher.

81. In those circumstances, the General Court infringed the principle of equal treatment inasmuch as it did not reduce their fines in order to redress the unlawful disproportion between the fines imposed on the appellants and those imposed on SKW, even though, in the parallel judgment in Gigaset v Commission, ( 57 ) relating to a similar situation, it reduced the amount of the fine imposed on Gigaset, SKW’s new parent company, on the ground that the principle of equal treatment required that, since the amount of the fine imposed on SKW had not been reduced, it was appropriate to reduce Gigaset’s fine. Furthermore, in failing to respond to the arguments put forward in the reply, which the appellants had not been able to raise beforehand, the General Court infringed the right to be heard and its obligation to state reasons.

82. The Commission submits that there has been no infringement of the principle of equal treatment in the present case. The judgment in Gigaset v Commission concerns a different situation. The arguments relating to SKW’s fine go beyond the subject matter of the proceedings at first instance, as paragraph 266 of the judgment under appeal makes explicitly clear. The argument that SKW should not have benefited from a leniency reduction is at odds with the line of argument relied on at first instance and, furthermore, is out of time and therefore inadmissible. In any event, the Commission argues, a potentially erroneous leniency reduction in SKW’s fine cannot justify a reduction in the appellants’ fines, in respect of which that notice was rightly applied.

2. Analysis

83. The appellants dispute the determination of the fine as effected by the General Court in the exercise of its unlimited jurisdiction. In their submission, the General Court infringed the principle of equal treatment inasmuch as, unlike in Gigaset v Commission, it did not reduce the appellants’ fines in order to redress the unlawful disproportion between those fines and the fine imposed on SKW, which should have been higher on account of two errors made in its determination: the failure to take account of an entrance fee and an undue leniency reduction.

84. In that regard, it should be recalled that, in accordance with settled case-law, the exercise of unlimited jurisdiction in respect of the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 101(1) TFEU. ( 58 ) Furthermore, in accordance with the case-law of the Court of Justice, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such treatment is objectively justified. ( 59 )

85. It is necessary, first of all, to analyse the Commission’s argument that this ground of appeal goes beyond the subject matter of the proceedings at first instance, thus rendering it inadmissible. It should be recalled in this regard that, while it is true that it is settled case-law that, in an appeal, the jurisdiction of the Court of Justice is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it, ( 60 ) the same case-law nonetheless also shows that an appellant is entitled to lodge an appeal relying, before the Court of Justice, on pleas arising from the judgment under appeal itself which seek to criticise, in law, its merits. ( 61 )

86. It need hardly be pointed out that, under the present ground of appeal, the appellants allege that the principle of equal treatment has been infringed in so far as concerns the fines as determined by the General Court in the exercise of its unlimited jurisdiction. By its very nature, therefore, this ground of appeal could not have been raised at first instance. ( 62 ) It follows that it is admissible.

87. However, it must be observed that the appellants’ arguments relate not to their specific situation but to alleged unlawful acts committed in the determination of SKW’s fine. It is well established that the principle of equal treatment must be reconciled with the principle that a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party, ( 63 ) which is a corollary of the principle of legality. ( 64 )

88. On that basis, even if the respective situations of Gigaset and the appellants are comparable inasmuch as the General Court determined their fines in the exercise of its unlimited jurisdiction, and notwithstanding that it is obviously impossible to call into question in the context of the present appeal the assessment carried out by the General Court in the judgment in Gigaset v Commission, I take the view in any event that, pursuant to the principle that a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party, the appellants cannot rely, in support of their claim for, inter alia, a reduction in their fines, on any unlawful acts or errors committed in the determination of SKW’s fine.

89. In those circumstances, the complaints alleging infringement of the right to be heard and the obligation to state reasons are, in my view, ineffective. Even if the General Court had examined the arguments put forward in the reply, to the effect that SKW should not have benefited from a leniency reduction, and even if, contrary to what the Commission submits, those arguments were admissible before the General Court, the appellants could not in any event have benefited from the unlawful acts allegedly committed in favour of SKW in order to obtain a reduction in their fines.

90. Finally, in so far as this ground of appeal is to be understood as claiming infringement of the principle of proportionality in the General Court’s determination of the fine, it is sufficient to recall that, according to settled case-law, it is not for the Court of Justice, when ruling on points of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. ( 65 ) There is nothing to indicate that the level of the penalty imposed on the appellants is not only inappropriate but also excessive to the point of being disproportionate, and that it is therefore appropriate to find that the General Court committed an error of law by reason of the inappropriateness of the amount of the fine.

91. It follows from all the foregoing that, in my opinion, the third ground of appeal must be rejected.

C – The fourth ground of appeal, raised in the alternative, alleging infringement of the principle of legal certainty, the principle of nulla poena sine lege certa and the obligation to state reasons incumbent on the General Court

1. Arguments of the parties

92. Under their fourth ground of appeal, which is raised in the alternative and relates to paragraph 288 of the judgment under appeal and paragraph 2 of the operative part of that judgment, the appellants claim that the General Court infringed the principle of legal certainty, the principle of nulla poena sine lege certa and the obligation to state reasons. The appellants accuse the General Court of having failed to make it sufficiently clear in the judgment under appeal that a payment by SKW would have a twofold extinguishing effect, that is to say that it would have the effect of discharging the obligations connected with the debt both for themselves and for Gigaset, which is also liable for payment of the fine jointly and severally with SKW. If the payment by SKW did not have a twofold distinguishing effect, the judgment under appeal would give rise to complete legal uncertainty. For, in such a situation, it would fall to the Commission to make a discretionary decision as to the extent to which it imputes that payment to the appellants and to Gigaset respectively. This would also make it impossible for the national court to give a ruling on any action brought before it in this regard.

93. The Commission submits that the appellants’ argument constitutes a new plea and is therefore inadmissible. In that connection, the fact that the statement of reasons criticised has arisen as a result of the exercise by the General Court of its unlimited jurisdiction is immaterial, since the infringement in question is one that could have been claimed at first instance. The Commission contends that the paragraph criticised was formulated by the General Court on its own initiative and is favourable to the appellants, which casts doubt on their interest in challenging it.

2. Analysis

94. By their fourth ground of appeal, the appellants challenge the clarification made by the General Court in paragraph 288 in fine of the judgment under appeal, and reproduced in the first indent of paragraph 2 of the operative part of that judgment, to the effect that ‘[Degussa] and AlzChem will be deemed to have satisfied the payment of that fine up to the amount paid by SKW … in respect of the fine which was imposed on it under Article 2(f) and (g) of [the contested decision]’.

95. The Commission contests the admissibility of this ground of appeal in so far as it constitutes a new plea that is inadmissible on appeal. In this regard, I would submit, as the Commission itself observes, that this is a ground of appeal which arises from the judgment under appeal itself and challenges a paragraph formulated by the General Court on its own initiative in the exercise of its unlimited jurisdiction. In those circumstances, pursuant to the case-law cited in point 85 above, it cannot, in my view, be regarded as a new plea and cannot therefore be considered to be inadmissible for that reason. ( 66 )

96. Next, I would submit that, as is clear from the preceding point of this Opinion, the parts of the judgment under appeal which are being challenged under this ground expressly provide that the amounts paid by SKW in connection with the fine imposed on it by the contested decision is to have the effect of extinguishing the corresponding amounts of the fine owed by the appellants. By their line of argument, the appellants seek from the Court of Justice a finding that the General Court erred in failing to declare that such a payment has a twofold extinguishing effect. Since the payments made by SKW already have the effect of releasing the appellants from their obligations in respect of that part of the fine for which they are jointly and severally liable with SKW, the present ground of appeal thus amounts, in essence, to a request that the Court recognise that those payments have the effect of extinguishing the amounts owed by Gigaset.

97. In that connection, it follows from case-law that an appellant has an interest in bringing an appeal as long as the appeal may, if successful, procure an advantage for the party bringing it. ( 67 )

98. It being clear from a reading of the judgment under appeal that any payment made by SKW in connection with the fine at issue releases the appellants from their obligations in respect of that part of the fine for which they are jointly and severally liable with SKW, up to the amount of the sums paid, the appellants would not procure any advantage from a finding upholding the present ground of appeal and recognising that the payments made by SKW have the effect of extinguishing the corresponding amounts owed by Gigaset.

99. It follows that this ground of appeal must be declared inadmissible.

D – The fifth ground of appeal, raised in the alternative, alleging infringement of Article 81 EC and Article 23 of Regulation (EC) No 1/2003 as well as of the principle of equal treatment, the right to be heard and the obligation to state reasons

1. Arguments of the parties

100. By their fifth ground of appeal, raised in the alternative and directed against paragraph 288 of the judgment under appeal, the appellants claim that the General Court infringed Article 81 EC, Article 23 of Council Regulation (EC) 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), the principle of equal treatment, the right to be heard and the obligation to state reasons. The appellants accuse the General Court of having deducted from that part of the fine deemed to have been paid in the event of payment by SKW the reduction granted to the appellants under the Leniency Notice. As they argued in the context of their third ground of appeal, the appellants submit that their application for leniency did not concern SKW, which, they contend, they made clear in their reply before the General Court. If the amount of the fine imposed on SKW had not been unlawfully reduced under the Leniency Notice, the proportion of the fine in respect of which a payment by SKW has the effect of releasing the appellants from their own obligations in connection with that fine would have had to be greater. It would have had to be EUR 3.47 million and not EUR 2.49 million. They are thus asking the Court to determine that a payment by SKW has the effect of releasing Degussa from its obligations in connection with the corresponding fine in an amount equal to EUR 3.47 million.

101. The Commission contends that the joint and several liability of SKW and the appellants cannot go beyond the joint and several debt. It further submits that the fine imposed on Degussa, pursuant to paragraph 289 of the judgment under appeal and the second indent of paragraph 2 of the operative part of that judgment (that is to say EUR 1.24 million), was specific to that company and was not subject to the joint and several liability mechanism. Finally, it states that the full extent of the joint and several liability incurred by the appellants and SKW, in the amount of EUR 2.49 million, does not mean that the latter benefited from the application for leniency made by the latter.

2. Analysis

102. By their fifth ground of appeal, the appellants accuse the General Court of having infringed the law on a number of counts by not having increased SKW’s joint and several liability when it reset the fine in the exercise of its unlimited jurisdiction. For, when resetting the fine, the General Court did not correct the fact that the Commission had erroneously taken into account in SKW’s favour the application for leniency made by the appellants, which did not concern SKW.

103. Thus, a payment made by SKW should have the effect of releasing the appellants from their obligations in connection with the fine imposed on them in the amount not of EUR 2.49 million, as laid down in the first indent of paragraph 2 of the operative part of the judgment under appeal, but of EUR 3.47 million. That effect should therefore also cover in part the fine imposed on Degussa, in the amount of EUR 1.24 million, in the second indent of paragraph 2 of the operative part of the judgment under appeal.

104. It is clear that such a ground of appeal cannot succeed.

105. After all, without there even being any need to address the question of whether the Court may, in the context of an appeal, increase the extent of joint and several liability, and therefore increase the amount of the fine imposed on a third party, such as SKW in the present case, it is sufficient to point out, as the Commission emphasises, that the liability incurred by SKW cannot go beyond the amount of the fine which was imposed on it jointly and severally with its parent companies for the infringement found to have been committed. That amount was set by the General Court at EUR 2.49 million.

106. Under no circumstances can SKW be required to pay, even in part, the fine of EUR 1.24 million laid down in the second indent of paragraph 2 of the operative part of the judgment under appeal. For, as is clear from paragraphs 271 and 289 of the judgment under appeal, that fine was imposed exclusively on Degussa on account of repeated infringement. That fine is therefore specific to Degussa and is excluded from joint and several liability. Consequently, the appellants cannot accuse the General Court of having committed any error or infringement of the law by failing to increase the joint and several liability incurred by SKW when resetting the fine in the exercise of its unlimited jurisdiction in order to cover Degussa’s fine.

107. The fifth ground of appeal must therefore also be dismissed.

108. It follows from all the foregoing that, in my view, the appeal must be dismissed in its entirety.

V – Costs

109. In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded the Court is to make a decision as to the costs.

110. Under Article 138(1) of the same rules, which apply to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

111. Since the Commission has applied for costs and the appellants have been unsuccessful, the latter must be ordered to pay the Commission’s costs and to bear their own costs.

VI – Conclusion

112. In the light of the foregoing considerations, I propose that the Court should: — dismiss the appeal; and — order Evonik Degussa GmbH and AlzChem AG to pay the costs.

( 1 ) Original language: French.

( 2 ) Formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH.

( 3 ) T‑391/09, EU:T:2014:22.

( 4 ) Decision relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries).

( 5 ) The infringement consisted of market sharing, fixing quotas, customer allocation, price fixing and the exchange of sensitive commercial information relating to prices, customers and sales volumes in the European Economic Area (EEA), with the exception of the Kingdom of Spain, Ireland, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland.

( 6 ) OJ 2002 C 45, p. 3.

( 7 ) See Article 1(f) of the contested decision.

( 8 ) See recitals 226 and 227 in the preamble to the contested decision.

( 9 ) See recitals 227, 228 and 235 in the preamble to the contested decision.

( 10 ) See recital 29 in the preamble to the contested decision.

( 11 ) Paragraphs 149 to 157 of the judgment under appeal.

( 12 ) See footnote 6 to this Opinion.

( 13 ) Paragraph 211 of the judgment under appeal.

( 14 ) Paragraphs 227 to 236 of the judgment under appeal.

( 15 ) Paragraphs 272 to 275 of the judgment under appeal.

( 16 ) See paragraph 2 of the operative part of the judgment under appeal.

( 17 ) C‑231/11 P to C‑233/11 P, EU:C:2014:256.

( 18 ) The second ground of appeal, alleging infringement of the right to be heard and the obligation to state reasons, concerned the argument which the appellants had advanced before the General Court on the basis of the judgment given by the General Court in Siemens Österreich and VA Tech Transmission & Distribution and Others v Commission (T‑122/07 to T‑124/07, EU:T:2011:70). That judgment of the General Court was, however, set aside by the judgment of the Court of Justice referred to in the preceding footnote to this Opinion.

( 19 ) According to that statement, which was attached to the application lodged with the General Court and to which the latter referred in paragraphs 91 and 102 of the judgment under appeal, Mr S asserted that, ‘[i]n the course of the 2003/2004 period, when calcium carbide suppliers were confronted with a fall in prices and a considerable increase in costs, in particular the cost of coke, I told Mr [L], [sole managing director (‘Geschäftsführer’) of SKW] more or less the following: “Even if, in this difficult situation, competitors indicate to us that they wish to enter into agreements, we shall not do so. And nor will you. I want to be very clear on this point[”]. I asked Mr [L] to convey that instruction to his colleagues. Mr [L] and his colleagues were well aware of my instruction that they should comply with competition law.’

( 20 ) See paragraphs 105 and 107 of the judgment under appeal.

( 21 ) Judgment in Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2013:514, paragraphs 38 and 39 and the case-law cited).

( 22 ) Ibid (paragraph 40 and the case-law cited).

( 23 ) Ibid (paragraph 41 and the case-law cited).

( 24 ) Judgment in General Química and Others v Commission (C‑90/09 P, EU:C:2011:21, paragraph 51 and the case-law cited).

( 25 ) Judgments in Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 58) and Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 112 and the case-law cited).

( 26 ) Judgment in General Química and Others v Commission (C‑90/09 P, EU:C:2011:21, paragraph 76).

( 27 ) See in that regard the considerations of Advocate General Mazák in point 36 of his Opinion in General Química and Others v Commission (C‑90/09 P, EU:C:2010:517) and paragraph 109 of the judgment in General Química and Others v Commission (C‑90/09 P, EU:C:2011:21).

( 28 ) See to that effect point 72 of the Opinion of Advocate General Kokott in Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2012:763).

( 29 ) See, inter alia, the judgments in General Motors v Commission (C‑551/03 P, EU:C:2006:229, paragraph 51); Evonik Degussa v Commission (C‑266/06 P, EU:C:2008:295, paragraph 72); and Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraphs 115 and 159).

( 30 ) See paragraph 78 of the judgment under appeal.

( 31 ) See in that regard point 146 of the Opinion of Advocate General Kokott in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:11).

( 32 ) See in this regard, with respect to an order given by a parent company to its subsidiary to comply with the rules of competition, the considerations of Advocate General Mazák in point 40 of his Opinion in General Química and Others v Commission (C‑90/09 P, EU:C:2010:517).

( 33 ) It is true that, in paragraph 92 of the judgment under appeal, the General Court confined its conclusion to the instruction given in 2002 and to the exercise [of decisive influence] ‘at that time’, because that paragraph concerned the analysis relating to the period prior to 1 January 2004. However, as I stated in points 33 to 35 of this Opinion, pursuant to what I have defined as a deductive methodology, that additional indication supported the conclusions that were transposed to the subsequent period, including the period of the infringement.

( 34 ) C‑501/11 P, EU:C:2013:522.

( 35 ) Ibid (paragraph 113). See also in this regard points 93 to 100 of the Opinion of Advocate General Kokott in Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:248) and point 102 of the Opinion of Advocate General Kokott in Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2014:2439).

( 36 ) See the statement reproduced in footnote 19 to this Opinion.

( 37 ) The Court has consistently rejected this argument on the ground that, for the purposes of the application of the prohibition on cartels laid down in EU law, action by a person who is authorised to act on behalf of the undertaking is sufficient for the infringing conduct to be imputed to the undertaking, there being no need for any action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned. See the judgments in Musique Diffusion française and Others v Commission (100/80 to 103/80, EU:C:1983:158, paragraph 97) and Slovenská sporitel’ňa (C‑68/12, EU:C:2013:71, paragraph 25).

( 38 ) One might even ask the question whether, in the case where a subsidiary is wholly controlled by its parent company, an employee of the subsidiary could be considered to be an employee of the group and therefore treated as an employee of the parent company.

( 39 ) See in this regard points 129 to 131 of the Opinion of Advocate General Kokott in Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:248).

( 40 ) See points 23 to 25 of this Opinion.

( 41 ) See also in this regard the Opinion of Advocate General Kokott in Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2014:2439, point 100 and the case-law cited).

( 42 ) See the judgment in Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraphs 96 and 97).

( 43 ) See in this regard the considerations contained in points 100 and 101 of the Opinion of Advocate General Kokott in Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2014:2439), to which the Court explicitly refers in paragraph 96 of the judgment in Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2015:416).

( 44 ) With regard to the reference made at the hearing to the judgment in BMW Belgium and Others v Commission (32/78 and 36/78 to 82/78, EU:C:1979:191), the General Court, in paragraphs 114 to 117 of the judgment under appeal, rejected the argument based on that judgment on the ground that it related to a different factual situation. The appellants have not adduced any evidence capable of calling that assessment into question.

( 45 ) See point 28 of this Opinion and the case-law cited there, as well as the judgment in General Química and Others v Commission (C‑90/09 P, EU:C:2011:21, paragraph 73).

( 46 ) See point 28 of this Opinion and the case-law cited in footnote 29 to it.

( 47 ) See, inter alia, the judgment in Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2013:514, paragraph 59 and the case-law cited).

( 48 ) See also to that effect the judgment in FLSmidth v Commission (C‑238/12 P, EU:C:2014:284, paragraph 21).

( 49 ) See recital 229 in the preamble to the contested decision.

( 50 ) See recital 236 in the preamble to the contested decision.

( 51 ) See also recital 233 in the preamble to the contested decision. These included in particular the argument that SKW had been sold with retroactive effect to 1 January 2004, the argument that participation in the cartel had been blatantly at odds with the express instructions given, and the argument that Degussa should be treated as a financial investor.

( 52 ) There is nothing in the contested decision to indicate that, in using the ‘dual basis’ method, the Commission intended to waive reliance on the application solely of the presumption of decisive influence. See in this regard the judgment in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 50). The attribution of liability was therefore based on the shareholding presumption and the additional factors relied on merely confirmed that presumption.

( 53 ) See, inter alia, the order in The Sunrider Corporation v OHIM (C‑142/14 P, EU:C:2015:371, paragraph 49 and the case-law cited).

( 54 ) See to that effect the judgment in General Química and Others v Commission (C‑90/09 P, EU:C:2011:21, paragraph 107). It is my view that, in order to rebut the shareholding presumption in cases where there is such a flow of information that is capable of confirming that presumption, it falls to the parent company to furnish sufficient evidence to demonstrate that the information exchanged is not relevant.

( 55 ) See, inter alia, the judgments in FLSmidth v Commission (C‑238/12 P, EU:C:2014:284, paragraph 28); Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2013:514, paragraph 71); and Eni v Commission (C‑508/11 P, EU:C:2013:289, paragraph 68 and the case-law cited).

( 56 ) Judgment in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission (T‑384/09, EU:T:2014:27, paragraph 240).

( 57 ) T‑395/09, EU:T:2014:23, paragraphs 181 to 186.

( 58 ) Judgments in Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 105) and Quinn Barlo and Others v Commission (C‑70/12 P, EU:C:2013:351, paragraph 46 and the case-law cited).

( 59 ) Judgment in Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 106).

( 60 ) See in this regard the judgment in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 111 and the case-law cited).

( 61 ) Judgments in Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 102) and Areva and Others v Commission (C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 118 and 170).

( 62 ) See the judgments in Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 104 and the case-law cited) as well as the considerations set out in points 141 and 142 of my Opinion in those cases (C‑231/11 P to C‑233/11 P, EU:C:2013:578).

( 63 ) Judgments in The Rank Group (C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62 and the case-law cited) and Solvay v Commission (C‑455/11 P, EU:C:2013:796, paragraph 109). See also in this regard the Opinion of Advocate General Wahl in Total Marketing Services v Commission (C‑634/13 P, EU:C:2015:208, point 92).

( 64 ) See to that effect point 61 of the Opinion of Advocate General Kokott in Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:11).

( 65 ) Judgments in E.ON Energie v Commission (C‑89/11, EU:C:2012:738, paragraphs 125 and 126) and Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 111).

( 66 ) I am bound to point out in this regard that there is some contradiction in the line of argument put forward by the Commission, which, on the one hand, states that the paragraph criticised was formulated by the General Court on its own initiative, but, on the other hand, submits that this is an infringement which could have been relied on at first instance.

( 67 ) See, inter alia, the judgments in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 22 and 23) and Ferrero v OHIM (C‑552/09 P, EU:C:2011:177, paragraph 39).