Evonik Degussa GmbH and AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH v European Commission.
Date: 2016-06-16
23


It should be observed that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts 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. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (judgment of 20 January 2016 in Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40). Moreover, such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 28 January 2016 in Éditions Odile Jacob v Commission, C‑514/14 P, EU:C:2016:55, paragraph 73 and the case-law cited).
26


However, in so far as (i) the appellants dispute the methodology used by the Court to assess the probative value of the evidence put forward by the appellants in order to rebut the presumption of exercise of decisive influence by them over SKW, (ii) criticise the General Court for having considered that the demonstration that a subsidiary’s conduct is in blatant contradiction to the instructions of its parent company fails to rebut that presumption, and (iii) also accuse the General Court of having adopted a far too restrictive criterion which resulted in making that presumption irrebuttable, their complaints are admissible. The question, posed by those complaints, whether the General Court has taken the right legal criterion as the basis for its appraisal of the facts and the evidence is a question of law, which is amenable to review by the Court of Justice in the present appeal (see, to that effect, judgment of 11 July 2013 in Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 59 and the case-law cited).
27


At the outset, it must be recalled, from the Court of Justice’s settled case-law, that responsibility for 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. In such a situation, since the parent company and its subsidiary are part of the same 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, to that effect, judgment in Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 40 and the case-law cited).
28


It also follows from the Court of Justice’s settled case-law that, in the particular case in which a parent company holds, directly or indirectly, all or almost all of the capital in a subsidiary which has committed an infringement of the EU competition rules, there is a rebuttable presumption that that parent company actually exercises a decisive influence over its subsidiary (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 56 and the case-law cited, and of 5 March 2015 in Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 41).
29


In such a situation, it is sufficient for the Commission to prove that all or almost all of the capital in the subsidiary is held, directly or indirectly, by the parent company in order to take the view that that presumption is fulfilled. Accordingly, the Commission will then be able to regard the parent company as responsible for its subsidiary’s conduct and as jointly and severally liable for the payment of the fine imposed on that subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, to that effect, judgment in Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraphs 42 and 43 and the case-law cited).
30


Therefore, when that presumption is established, as is not disputed by the appellants in this case, such a presumption implies, unless it is rebutted, that the actual exercise of decisive influence by the parent company over its subsidiary is considered established and gives grounds for the Commission to hold the former company responsible for the conduct of the latter, without having to produce any further evidence.
31


Once the presumption of actual exercise of decisive influence is established, it is solely for the parent company holding all or almost all of the capital of its subsidiary to rebut it.
32


In order to rebut that presumption, a parent company must, in the context of the actions against a Commission decision, put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are such as to demonstrate that they do not constitute a single economic entity (see, to that effect, judgment of 20 January 2011 in General Química and Others v Commission, in C‑90/09 P, EU:C:2011:21, paragraph 51 and the case-law cited).
33


In order to assess whether that subsidiary decides independently upon its own conduct on the market or carries out, in all material respects, the instructions given to it by its parent company (see, to that effect, judgment of 11 July 2013 in Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 38 and the case-law cited), the EU judicature must take into consideration all relevant factors, which may vary from case to case and therefore cannot be set out in an exhaustive list (judgment of 26 September 2013 in The Dow Chemical Company v Commission, C‑179/12 P, not published, EU:C:2013:605, paragraph 54).
34


As part of that review, it is for the General Court to carry out an assessment of the facts which are contemporaneous with the period of the infringement, but without prejudice to the possibility of relying on elements relating to a prior period, in so far as it is able to establish the relevance of those elements to the period of the infringement and it does not automatically apply to the period of the infringement the conclusions stemming from the assessment of elements prior to that period.
41


However, the fact that a subsidiary does not comply with an instruction given by its parent company is not sufficient, by itself, to establish the absence of actual exercise of decisive influence by the parent over the subsidiary, given that the Court of Justice has already stated that it is not necessary for the subsidiary to carry out all the parent company’s instructions to demonstrate decisive influence, as long as the failure to carry out those instructions is not the norm (see, to that effect, judgment of 24 June 2015 in 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, paragraphs 96 and 97).
44


In that regard, the Court has already held that the fact that it is difficult to adduce the evidence necessary to rebut a presumption of actual exercise of decisive influence does not in itself mean that that presumption is in fact irrebuttable, especially where the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity (judgment in Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 46 and the case-law cited).
55


As a preliminary point, it must be recalled that an appellant is entitled to lodge an appeal relying on pleas arising from the judgment under appeal itself and which seek to criticise, in law, its merits (see, to that effect, judgments of 10 April 2014 in Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 102, and 10 April 2014 in Areva and Others v CommissionC‑247/11 P and C‑253/11 P, ECR, EU:C:2014:257, paragraphs 118 and 170 and the case-law cited).
58


That said, it is settled case-law of the Court of Justice that the principle of equal treatment, relied on by the appellants, must be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party (judgment of 10 November 2011 in The Rank Group, C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62 and the case-law cited).
59


Accordingly, in so far as they relied to their benefit, as is clear from paragraphs 49 and 50 above, on the allegedly unlawful determination of the amount of the fine imposed on SKW, the appellants, in any event, cannot rely on the principle of equal treatment and the judgment of 23 January 2014 in Gigaset v Commission (T‑395/09, not published, EU:T:2014:23) to contest the fines which the General Court imposed on them.
66


According to the Court of Justice’s settled case-law, the interest in bringing proceedings — a condition of admissibility — must continue up until the Court’s ruling on the substance. Such an interest exists as long as the appeal may, if successful, procure an advantage for the party bringing it (judgment of 24 March 2011 in Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 39 and the case-law cited).
67


Such a condition of admissibility is needed both for the appeal in its entirety and for each of the grounds raised in support of it.