The Goldman Sachs Group Inc. v European Commission.
Date: 2021-01-27
31


As regards, in the second place, the appellant’s arguments concerning the General Court’s finding that the Commission was entitled to rely on a presumption that the parent company actually exercised decisive influence over the conduct of its subsidiary, it should be recalled that 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 (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 75 and the case-law cited).
32


It is also 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 competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise such influence. In those circumstances, it is sufficient for the Commission to prove that the entire capital, or virtually the entire capital, of a subsidiary is held by its parent in order for it to be presumed that the parent exercises decisive influence over the commercial policy of that subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its 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 (judgment of 28 October 2020, Pirelli & C. v Commission, C‑611/18 P, not published, EU:C:2020:868, paragraph 68 and the case-law cited).
33


Unless it is rebutted, such a presumption therefore implies that the actual exercise of decisive influence by the parent company over its subsidiary is considered to be established and entitles the Commission to hold the parent company liable for the conduct of the subsidiary without having to produce any additional evidence. The implementation of the presumption of actual exercise of decisive influence is thus not conditional upon the production of additional indicia relating to the actual exercise of influence by the parent company (judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraphs 85 and 86 and the case-law cited).
38


First, the presumption that decisive influence is exercised over a subsidiary by its parent company is intended, in particular, to strike a balance between, on the one hand, the importance of the objective of combating conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct and, on the other hand, the requirements flowing from certain general principles of European Union law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender and the principle of legal certainty as well as the rights of the defence, including the principle of equality of arms (see, to that effect, judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 108 and the case-law cited).
40


Moreover, it should be borne in mind that the Commission is not in any way bound to rely exclusively on that presumption. There is nothing to prevent the Commission from establishing that a parent company actually exercises decisive influence over its subsidiary by means of other evidence or by a combination of such evidence and that presumption (judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 88 and the case-law cited).
48


In the second place, it should be noted that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).
49


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 (judgments of 18 January 2017, Toshiba v Commission, C‑623/15 P, not published, EU:C:2017:21, paragraph 39, and of 14 June 2018, Makhlouf v Council, C‑458/17 P, not published, EU:C:2018:441, paragraph 57).
67


As regards the admissibility of the first part of the second ground of appeal, it must be borne in mind that it is settled case-law of the Court that, 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. Moreover, the actual 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 18 January 2017, Toshiba v Commission, C‑623/15 P, not published, EU:C:2017:21, paragraphs 46 and 47 and the case-law cited).
68


It is also apparent from the case-law that, 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. (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 34).
93


Fourthly, as regards the appellant’s argument that it follows from the case-law that only an accumulation of posts necessarily place the parent company in a position to have a decisive influence on its subsidiary’s market conduct and that such a situation is lacking in the present case, it should be borne in mind that it is apparent from the case-law, as the General Court observed, in paragraph 107 of the judgment under appeal, that the existence of an economic entity formed by the parent company and its subsidiary may be based not only on the formal relationship between the two, but also on informal relationships, consisting inter alia in personal links between the legal entities comprising such an economic unit (see, to that effect, judgment of 11 July 2013, Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 68).
98


The Court of Justice has also stated that, where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his or her view, led to that distortion (judgment of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission, C‑591/18 P, not published, EU:C:2019:1026, paragraph 63 and the case-law cited).