SIA ‘VM Remonts’(formerly SIA ‘DIV un KO’) and Others v Konkurences padome.
Date: 2016-07-21
17


In that connection, the Court has on many occasions held that it had jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations in which the facts of the cases before the national courts fell outside the scope of that law, provided that those provisions had been rendered applicable by national law, which had adopted, for purely internal situations, the same approach as that provided for under EU law. In such cases, according to the settled case-law of the Court, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions or concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, inter alia, judgments of 14 March 2013 in Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraph 20; 4 December 2014 in FNV Kunsten Informatie en Media, C‑413/13, EU:C:2014:2411, paragraph 18; and 26 November 2015 in Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 12).
21


In that regard, a preliminary point to note is that this question does not concern the rules relating to the assessment of evidence and the requisite standard of proof which, in the absence of EU rules on the matter, are covered, in principle, by the procedural autonomy of the Member States (see judgment of 21 January 2016 in Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 29 to 37). Rather, it concerns the constituent elements of the infringement that must be present if an undertaking is to be found liable for a concerted practice.
22


Next, it should be borne in mind that, under EU competition law, an undertaking must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (judgments of 12 July 1984 in Hydrotherm Gerätebau, 170/83, EU:C:1984:271, paragraph 11, and 10 September 2009 in Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 55).
23


Nevertheless, it must be stated, first, that the judgments of 7 June 1983 in Musique Diffusion française and Others v Commission (100/80 to 103/80, EU:C:1983:158), and 7 February 2013 in Slovenská sporiteľňa (C‑68/12, EU:C:2013:71) were given by the Court in cases in which undertakings were implicated on the basis of the acts of their employees. An employee performs his duties for and under the direction of the undertaking for which he works and, thus, is considered to be incorporated into the economic unit comprised by that undertaking (see, to that effect, judgment of 16 September 1999 in Becu and Others, C‑22/98, EU:C:1999:419, paragraph 26).
27


Nonetheless, it is possible that, in certain circumstances, a service provider which presents itself as independent is in fact acting under the direction or control of an undertaking that is using its services. That would be the case, for example, in circumstances in which the service provider had only little or no autonomy or flexibility with regard to the way in which the activity concerned was carried out, its notional independence disguising an employment relationship (see, to that effect, judgment of 4 December 2014 in FNV Kunsten Informatie en Media, C‑413/13, EU:C:2014:2411, paragraphs 35 and 36). Furthermore, such direction or control might be inferred from the existence of particular organisational, economic and legal links between the service provider in question and the user of the services, just as with the relationship between parent companies and their subsidiaries (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 75 and 76 and the case-law cited). In such circumstances, the undertaking using the services could be held liable for the possible unlawful conduct of the service provider.
29


In that regard, it should be recalled that the Court has held that an undertaking may be held liable for agreements or concerted practices having an anti-competitive object when it intended to contribute by its own conduct to the common objectives pursued by all the participants and was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to accept the risk (see, to that effect, judgment of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 87).
30


Accordingly, the concerted practice at issue may be attributed to the undertaking using the services, inter alia, if the undertaking was aware of the anti-competitive objectives pursued by its competitors and the service provider and intended to contribute to them by its own conduct. Whilst it is true that such a condition is met when that undertaking intended, through the intermediary of its service provider, to disclose commercially sensitive information to its competitors, or when it expressly or tacitly consented to the provider sharing that commercially sensitive information with them (see, by analogy, judgments of 7 January 2004 in Aalborg Portland and Others v Commission, 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, EU:C:2004:6, paragraphs 82 to 84, and 21 January 2016 in Eturas and Others, C‑74/14, EU:C:2016:42, paragraph 28), the condition is not met when that service provider has, without informing the undertaking using its services, used the undertaking’s commercially sensitive information to complete those competitors’ tenders.