General Química SA and Others v European Commission.
Date: 2011-01-20
34. It should be noted, at the outset, that, according to settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, inter alia, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission [2005] ECR I‑5425, paragraph 112; Case C‑222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraph 107; and Case C‑205/03 P FENIN  v Commission [2006] ECR I‑6295, paragraph 25).
35. The Court has also stated that, in the same context, the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio  [2006] ECR I‑11987, paragraph 40; Akzo Nobel and Others  v Commission , paragraph 55; and Case C‑407/08 P Knauf Gips  v Commission  [2010] ECR I‑0000, paragraph 64).
36. When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement ( Akzo Nobel and Others  v Commission , paragraph 56 and the case-law cited).
37. As regards the question whether, in those circumstances, a legal person who is not the perpetrator of the infringement may none the less be penalised, it is apparent from the settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular when, 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 which tie those two legal entities ( Akzo Nobel and Others  v Commission , paragraph 58 and the case-law cited).
38. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines on the parent company, without having to establish the personal involvement of the latter in the infringement (see, to that effect, Akzo Nobel and Others  v Commission , paragraph 59).
39. In that regard, the Court has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence (see Akzo Nobel and Others  v Commission , paragraph 60 and the case-law cited).
40. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to assume that the parent exercises a decisive influence over the commercial policy of the 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 (see Stora Kopparbergs Bergslags  v Commission , paragraph 29, and Akzo Nobel and Others  v Commission , paragraph 61).
41. Thus, contrary to the appellants’ claims, the General Court rightly held in paragraph 60 of the judgment under appeal that, whilst it is true that at paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission  the Court of Justice referred, not only to the fact that the parent company owned 100% of the capital of the subsidiary, but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the information on which the General Court had based its reasoning in that case and not to make the application of the presumption mentioned above subject to the production of additional indicia relating to the actual exercise of influence by the parent company over its subsidiary (see, to that effect, Akzo Nobel and Others  v Commission , paragraph 62).
51. It is apparent from the Court’s case-law that, in order to rebut the presumption that a parent company which holds 100% of the capital of its subsidiary actually exercises a decisive influence over that subsidiary, it is for the parent company to put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are apt to demonstrate that they do not constitute a single economic entity (see Akzo Nobel and Others  v Commission , paragraph 65).
59. It should be noted in that regard that, according to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see Case C‑202/07 P France Télécom  v Commission  [2009] ECR I‑2369, paragraph 29 and the case-law cited).
71. It should be noted at the outset that, according to settled case-law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice 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 found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, inter alia, Case C‑551/03 P General Motors  v Commission [2006] ECR I‑3173, paragraph 51; judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa  v Commission , paragraph 72; and Case C‑535/06 P Moser Baer India  v Council  [2009] ECR I‑7051, paragraph 31).
72. The Court of Justice thus 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 clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice ( General Motors  v Commission , paragraph 52; Case C‑113/04 P Technische Unie  v Commission  [2006] ECR I‑8831, paragraph 83; and judgment of 31 January 2008 in Case C‑103/07 P Angelidis  v Parliament , paragraph 46).
77. Such verification is required all the more since GQ’s independence in implementing its commercial policy forms part, as is apparent from the Court’s case-law, of the set of relevant factors enabling the appellants to rebut the presumption of RQ’s decisive influence over GQ’s conduct, factors whose character and importance may vary depending on the specific characteristics of each individual case (see, to that effect, Akzo Nobel and Others  v Commission , paragraphs 73 and 74).
88. It follows that, as pointed out by the Advocate General in points 62 and 63 of his Opinion, in the specific case where a holding company holds 100% of the capital of an interposed company which, in turn, holds the entire capital of a subsidiary of its group which has committed an infringement of EU competition law, there is a rebuttable presumption that that holding company exercises decisive influence over the conduct of the interposed company and also indirectly, via that company, over the conduct of that subsidiary.
89. Consequently, in that specific situation, the Commission is entitled to require the holding company to pay the fine imposed on the last subsidiary of the group jointly and severally, unless the holding company can rebut that presumption by demonstrating that either the interposed company or the subsidiary operate independently on the market (see, by analogy, Stora Kopparbergs Bergslags  v Commission , paragraph 29, and Akzo Nobel and Others  v Commission , paragraph 61).
102. It is true that such factors militate in favour of a lack of knowledge of the infringement alleged against GQ, an absence of participation in that infringement and non-instigation to commit that infringement. However, contrary to what the appellants submit, what counts is not whether the parent company encouraged its subsidiary to commit an infringement of the EU competition rules, or whether it was directly involved in the infringement committed by its subsidiary, but the fact that those two companies constitute a single economic unit and thus a single undertaking for the purposes of Article 81 EC which enables the Commission to impose a fine on the parent company (see, to that effect, Akzo Nobel and Others  v Commission , paragraphs 59 and 77).
103. It must therefore be noted that, in the present case, the mere fact, first, that RQ was made aware of the infringement only after the inspection on 27 September 2002 of the place of business of GQ and, second, that it did not participate directly in that infringement or encourage it to be committed is not such as to show that those two companies do not constitute a single economic unit. Such a fact is not suffi cient to rebut the presumption that RQ actually exercised decisive influence over GQ’s conduct.