European Commission v Aalberts Industries NV and Others.
Date: 2013-07-04
26. It is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a 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, having regard in particular to the economic, organisational and legal links between those two legal entities (see Case C‑97/08 P Akzo Nobel and Others  v Commission  [2009] ECR I‑8237, paragraph 58 and the case‑law cited).
32. In that regard, it is apparent from the case-law of the Court of Justice that an error of law committed by the General Court does not invalidate the judgment under appeal if the operative part of that judgment appears to be well founded on other legal grounds (see, to that effect, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 47, and Case C‑352/09 P ThyssenKrupp Nirosta  v Commission  [2011] ECR I‑2359, paragraph 136).
40. In those circumstances, even if the view were to be taken that Aalberts, Aquatis and Simplex formed one undertaking for the purposes of European Union competition law, in order for it to be possible to impute the liability for the cartel at issue to that undertaking, it would be necessary for one member at least of that group to have rejoined the cartel (see, to that effect, Case C‑286/11 P Commission  v Tomkins  [2013] ECR I‑0000, paragraph 37).
47. 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 established 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 (see Case C‑445/11 P Bavaria  v Commission  [2012] ECR I-0000, paragraph 23 and the case-law cited).
48. Clearly, by that line of argument, the Commission is requesting the Court of Justice to carry out a fresh assessment of the facts. The assessment of the evidence called into question by the Commission thus relates to an assessment of the facts which, save where the evidence adduced before the General Court has been distorted, cannot be reviewed by the Court of Justice (see Bavaria  v Commission , paragraph 24 and the case-law cited).
50. With regard to the third part of the first ground of appeal, where a party alleges distortion of the evidence by the General Court, it should be borne in mind that, under the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 51 of the Statute of the Court of Justice and point (d) of the first subparagraph of Article 168(1) of the Rules of Procedure of the Court of Justice, the 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, Joined Cases C-204/00 P, C‑205/00 P, C‑211/00 P, C-213/00 P, C‑217/00 P and C-219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I-123, paragraph 50).
51. There is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I‑439, paragraph 37, and Case C‑413/08 P Lafarge  v Commission  [2010] ECR I‑5361, paragraph 17).
52. However, by the third part of the first ground of appeal, the Commission merely suggests a reading different from that adopted by the General Court of the various elements of evidence relating to Simplex’s alleged participation in the cartel at issue, in particular, Ms P.’s handwritten notes of 25 February 2004 concerning a telephone conversation with Mr W. and the statements of Messrs Be., H. and Ha. concerning an allegedly collusive meeting which took place at the Essen trade fair on 18 March 2004. The arguments raised in the present case by the Commission do not, however, permit the conclusion that the General Court manifestly exceeded the limits of a reasonable assessment of the evidence (see, by analogy, Case C‑260/09 P Activision Blizzard Germany  v Commission  [2011] ECR I‑419, paragraph 57).
63. In accordance with the case-law, it must be established that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the conduct planned or put into effect by other undertakings in pursuit of those same objectives, or that it could reasonably have foreseen it, and that it was prepared to take the risk (see, to that effect, Case C‑441/11 P Commission  v Verhuizingen Coppens  [2012] ECR I‑0000, paragraph 42 and the case-law cited). The findings made by the General Court in paragraphs 112 and 119 of the judgment under appeal exclude that possibility.
64. As regards whether, as the Commission claims, the General Court ought in any event to have annulled Article 1 of the contested decision in part in respect of the respondents since the undertaking concerned participated in a constituent element of the single, complex and continuous infringement, namely the FNAS meetings, the Court of Justice has previously held that partial annulment of an act of European Union law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the act (see Commission  v Verhuizingen Coppens , paragraph 38 and the case-law cited).