The Dow Chemical Company v European Commission.
Date: 2013-09-26
52. As a preliminary point, it must be observed that, according to settled case-law, the behaviour of a subsidiary can be imputed to the parent company, in particular where, despite having separate legal personality, that 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, regard being had in particular to the economic, organisational and legal links between those two legal entities ( Akzo Nobel and Others v Commission , 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)
53. 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).
54. The Court of Justice has 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).
55. In paragraphs 73 and 75 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 held 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] 3151, paragraph 50).
56. It should be noted in that regard that the principle 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 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).
57. More specifically, with regard to the claim that the General Court misconstrued the terms ‘single economic unit’ and ‘single undertaking’, it must be stated that, in paragraph 73 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).
58. 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.
63. According to settled case-law of the Court of Justice, complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (see, inter alia, the order of 20 January 2009 in Case C‑374/07 P Mebrom  v Commission , paragraph 57, and Case C‑96/09 P Anheuser-Busch  v Budějovický Budvar  [2011] ECR I‑2131, paragraph 211)
71. In that regard, it should be recalled that it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (Case C‑551/03 P General Motors  v Commission [2006] ECR I‑3173, paragraph 51; Case C‑352/09 P ThyssenKrupp Nirosta v Commission  [2011] ECR I‑2359 paragraph 179; and judgment of 28 July 2011 in Joined Cases C‑471/09 P to C‑473/09 P Diputación Foral de Vizcaya and Others v Commission , paragraphs 54 and 55).
72. The Court has also stated that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission [2006] ECR I‑4429, paragraph 85, and ThyssenKrupp Nirosta  v Commission , paragraph 180).
82. As the Commission rightly points out, to allow a party to put forward for the first time before the Court of Justice a plea and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the findings of law on the pleas argued before the General Court ( Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraph 111 and the case-law cited).