EI du Pont de Nemours and Company v European Commission.
Date: 2013-09-26
41. It should be pointed out first of all that, in accordance with the settled case-law of the Court of Justice, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, regard being had in particular to the economic, organisational and legal links between those two legal entities (Case C‑97/08 P Akzo Nobel and Others  v Commission  [2009] ECR I‑8237, paragraphs 58 and 72, and Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others  [2012] ECR I‑0000, paragraph 43).
42. In such a situation, because 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 to the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others  v Commission , paragraph 59, and Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraph 44).
43. The Court of Justice has also stipulated that account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others  v Commission , paragraph 74, and Case C‑521/09 P Elf Aquitaine  v Commission  [2011] ECR I‑8947, paragraph 58).
44. In paragraphs 58 to 60 of the judgment under appeal, the General Court therefore cited the case-law setting out the test for imputing to a parent company the competition infringement committed by its subsidiary. It rightly found that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (see, to that effect, Case 107/82 AEG-Telefunken  v Commission  [1983] ECR 3151, paragraph 50).
45. It should be noted in that regard that the rule that it is necessary to check whether the parent company actually exercised decisive influence over its subsidiary applies only where the subsidiary is not wholly owned by its parent company. According to the settled case-law of the Court of Justice, where the entire capital of the subsidiary is owned, there is no longer any requirement to carry out such a check since, in those circumstances, there is a presumption of decisive influence on the part of the parent company, which has the burden of rebutting that presumption (see Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraphs 46 and 47 and the case-law cited).
46. More specifically, with regard to the claim that the General Court misconstrued the term ‘a single undertaking’, it must be stated that, in paragraph 58 of the judgment under appeal, the General Court pointed out that, according to the settled case-law of the Court of Justice, in competition law the term undertaking must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case‑170/83 Hydrotherm Gerätebau  [1984] ECR 2999, paragraph 11; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 40; and Akzo Nobel and Others  v Commission , paragraph 55).
47. Where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC.
58. In that regard it must be noted that, where a party challenges the interpretation or application of European Union law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if a party could not base its appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C-234/02 P European Ombudsman  v Lamberts  [2004] ECR I‑2803, paragraph 75, and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533, paragraph 116).