Toshiba Corp. v European Commission.
Date: 2017-01-18
39


It must be borne in mind that, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the Rules of Procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the General Court has been distorted, that assessment therefore does not constitute a point of law which is subject to review by the Court of Justice. However, the jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the question whether the rules relating to the burden of proof and the taking of evidence have been observed (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 38 and 39 and the case-law cited). In particular, the question whether the General Court has taken the right legal criteria as the basis for its appraisal of the facts and evidence is a question of law, which is amenable to review by the Court of Justice in an appeal (judgment of 11 July 2013, Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 59 and the case-law cited).
40


With regard, in particular, to the distortion of evidence and facts, the Court has repeatedly held that there is such distortion where, without having recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect or manifestly at odds with its wording (see, to that effect, judgments of 18 January 2007, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 37, and of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 44).
42


Secondly, as can be seen from paragraphs 25 and 34 of the present judgment, Toshiba submits, inter alia, that the General Court failed to state reasons, or failed to state adequate reasons, for the judgment under appeal. In that respect, it must be borne in mind that the question whether the grounds of a judgment of the General Court are inadequate is a question of law which is amenable, as such, to review in an appeal (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 63 and the case-law cited).
43


Thirdly, as noted in paragraph 32 of the present judgment, Toshiba argues, inter alia, that the General Court substituted its own reasoning for that of the decision at issue. The Court of Justice has jurisdiction to review, in an appeal, whether the General Court exceeded the limits of its jurisdiction by carrying out such a substitution of reasoning (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraphs 88 and 89 and the case-law cited).
45


It should be pointed out that, according to settled case-law, liability for 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, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 27 and the case-law cited).
46


In examining whether the parent company is able to exercise decisive influence over the market conduct of its subsidiary, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to its parent company and, therefore, account must be taken of the economic reality (judgment of 24 June 2015, 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, paragraph 76 and the case-law cited).
47


Moreover, the exercise of decisive influence by a parent company over its subsidiary’s conduct may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such influence (judgment of 24 June 2015, 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, paragraph 77 and the case-law cited).
48


Lastly, the Court has previously held that the exercise of joint control, by two parent companies which are independent of each other, of their subsidiary does not, in principle, preclude a finding by the Commission of the existence of an economic unit comprising one of those parent companies and the subsidiary concerned (judgment of 24 June 2015, 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 paragraph 78 and the case-law cited). It has also held that two parent companies each having a 50% shareholding in a joint venture may both be regarded as exercising decisive influence over the joint venture, in so far as the Commission has demonstrated it on the basis of factual evidence (see, to that effect, judgments of 26 September 2013, EI du Pont de Nemours v Commission, C‑172/12 P, not published, EU:C:2013:601, paragraph 47, and of 26 September 2013, The Dow Chemical Company v Commission, C‑179/12 P, not published, EU:C:2013:605, paragraph 58).
52


In so ruling, the General Court correctly applied the case-law of the Court of Justice according to which, as regards liability for an infringement of the competition rules, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 80 and the case-law cited), and it did not establish a presumption not laid down in the case-law.
54


In that respect, it should be noted that such distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and the evidence (order of 29 June 2016, Ombudsman v Staelen, C‑337/15 P, not published, EU:C:2016:670, paragraph 20). Furthermore, in accordance with Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court, an appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (see, to that effect, judgment of 17 March 2016, Naazneen Investments v EUIPO, C‑252/15 P, not published, EU:C:2016:178, paragraph 69).
66


In so doing, the General Court correctly applied the case-law set out in paragraphs 45 to 48 of the present judgment and — contrary to Toshiba’s assertions — did not err in law. In particular, it follows from paragraph 46 of the present judgment that, 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 the economic, organisational and legal links between the subsidiary and its parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, also, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 100). It follows that, contrary to what, in essence, Toshiba argues, the General Court was not required to determine whether Toshiba had influenced the joint venture’s operational management, in order to conclude that those two companies formed part of a single economic unit.
78


It must also be emphasised that, contrary to Toshiba’s assertions, it cannot be excluded that the fact that a parent company and its subsidiary have a preferential supplier relationship constitutes an indication of the former’s capacity to exercise decisive influence over the latter’s conduct (see, by analogy, judgment of 24 June 2015, 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, paragraph 90), since the question of the weight to be attached to such an indication in assessing whether the parent company and its subsidiary form a single economic unit ultimately comes within the scope of the General Court’s assessment of the facts, which cannot be called into question at the appeal stage.