Keywords

Summary



Keywords

1 ECSC - Agreements, decisions and concerted practices - Undertaking - Concept - Economic unit

(ECSC Treaty, Art. 65(1); EC Treaty, Art. 85(1))

2 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement by a subsidiary - Parent company may be held responsible - Conditions - Procedural obligations incumbent upon the Commission - Observance of the rights of the defence

(ECSC Treaty, Arts 36 and 65(1) and (5))

3 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding

(ECSC Treaty, Art. 65(5))

4 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Cases in which the fine is fixed by the Community judicature - Unlimited jurisdiction

(ECSC Treaty, Art. 36, second para.)

Summary

1 Like the prohibition in Article 85(1) of the EC Treaty, that in Article 65(1) of the ECSC Treaty is addressed to, inter alia, `undertakings'. The concept of undertaking, within the meaning of Article 85 of the EC Treaty, is to be understood as an economic unit consisting of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis, a unit which may assist in the commission of an infringement referred to in that provision. The same applies to Article 65 of the ECSC Treaty.

2 The fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company, especially where the subsidiary does not determine its market conduct independently but in all material respects carries out the instructions given to it by the parent company.

In such cases, the fact that the Commission did not first send the parent company a statement of objections or indicate its intention of imputing to that company liability for the infringements committed by its subsidiary and, accordingly, of imposing upon it a fine calculated on the basis of its turnover, could constitute a procedural irregularity capable of adversely affecting the applicant's rights of defence as guaranteed by Article 36 of the ECSC Treaty.

However, such an irregularity is not such as to entail the annulment of the decision in cases where the following circumstances obtain: (i) both the parent company and the subsidiary have replied without distinction to requests for information addressed by the Commission to the subsidiary, which is regarded by the parent company as merely its `organisation' or sales `agency'; (ii) the parent company spontaneously regarded itself as the addressee of the statement of objections formally notified to its subsidiary, of which it was fully aware, and instructed a lawyer to defend its interests; (iii) the parent company was requested to provide the Commission with certain information concerning its turnover for the products during the period of infringement referred to in the statement of objections; and (iv) the parent company was given the opportunity to submit its observations both on the objections which the Commission proposed to uphold against its subsidiary and on the imputation of liability contemplated.

3 A reduction in the amount of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

4 By its nature, the fixing of a fine by the Court of First Instance in the exercise of its unlimited jurisdiction is not an arithmetically precise operation. Moreover, the Court is not bound by the Commission's calculations, but must carry out its own assessment, taking all the circumstances of the case into account.