Arkema SA v European Commission.
Date: 2011-09-29
31. The issue of whether a ground of appeal is ineffective concerns its ability successfully to found an appeal and does not affect its admissibility (see, to that effect, Case C‑76/01 P Eurocoton and Others  v Council  [2003] ECR I‑10091, paragraph 52, and Case C‑203/07 P Greece  v Commission  [2008] ECR I‑8161, paragraphs 42 and 43). Accordingly, the objection of inadmissibility set out in paragraph 27 above must be rejected.
37. Next, it should be noted that 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. The Court has stated that in this context the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that when such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (Case C‑90/09 P General Química and Others  v Commission  [2011] ECR I‑0000, paragraphs 34 and 35 and the case-law cited, and Joined Cases  C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg  v Commission and Commission  v ArcelorMittal Luxembourg and Others [2011] ECR I‑0000, paragraph 95).
38. It is clear from 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 General Química and Others  v Commission , paragraph 37).
39. 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, Akzo Nobel and Others  v Commission , paragraph 59, and General Química and Others  v Commission , point 38).
40. 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 on 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, inter alia, Case 107/82 AEG-Telefunken  v Commission  [1983] ECR 3151, paragraph 50; Akzo Nobel and Others  v Commission , paragraph 60;  General Química and Others  v Commission , paragraph 39; and ArcelorMittal Luxembourg  v Commission and Commission v ArcelorMittal Luxembourg and Others , paragraph 97).
41. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent company 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 Case C‑286/98 P Stora Kopparbergs Bergslags  v Commission  [2000] ECR I‑9925, paragraph 29; Akzo Nobel and Others  v Commission , paragraph 61; General Química and Others  v Commission , paragraph 40; and ArcelorMittal Luxembourg  v Commission and Commission v ArcelorMittal Luxembourg and Others , paragraph 98).
48. In the passage in paragraph 76 at issue, the General Court merely states that the possibility cannot be ruled out that a ‘non-operational holding company’, despite the fact that it does not act directly in the market, may exercise decisive influence over the commercial policy of its subsidiaries, in view in particular of its function of coordination and financial management, and that therefore the exercise of such influence may be presumed actually to take place where all or virtually all the share capital of the subsidiary are held by the  parent company. That is why, to follow the General Court’s reasoning, it is not sufficient to claim that the parent company is non-operational in order to rebut the presumption that it actually exercises decisive influence over the commercial policy of subsidiaries, which remains a rebuttable presumption.
49. In that regard, it is apparent from a number of paragraphs of the judgment under appeal, including paragraphs 67 and 82, that the General Court considered that the presumption in question is capable of being overturned.
50. It is clear from the above considerations that the ground of appeal alleging failure to observe the rules on the imputability to the parent company of the practices of its subsidiary in that the General Court applied an irrebuttable version of the presumption based on ownership by the parent company of the total share capital of its subsidiary is unfounded, since it is based on a misreading of the judgment under appeal.
59. It is settled case-law that it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and indent (c) of the first subparagraph of Article 112(1) of its Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑407/08 P Knauf Gips  v Commission [2010] ECR I‑0000, paragraph 43 and case-law cited).
61. However, the argument supporting the present ground of appeal is not sufficiently clear and precise to enable the Court to exercise its judicial review. The essential points on which the present ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the present appeal, which is worded in a vague and ambiguous manner in that regard. In those circumstances, the Court is not in a position to exercise its judicial review without running the risk of ruling ultra petita (see, inter alia, by analogy, Case C‑194/99 P Thyssen Stahl  v Commission  [2003] ECR I‑10821, paragraph 106; Case C‑227/04 P Lindorfer  v Council  [2007] ECR I‑6767, paragraph 83; Case C‑343/08 Commission  v Czech Republic  [2010] ECR I‑275, paragraph 26; and Case C‑67/09 P Nuova Agricast and Cofra  v Commission [2010] ECR I‑0000, paragraphs 48 and 49).
64. According to Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. Thus, the Court’s jurisdiction in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party may not, therefore, change the subject-matter of the dispute by putting forward for the first time before the Court of Justice a plea in law which it could have raised before the General Court but has not raised, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, inter alia, Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 59; Case C‑266/97 P VBA  v VGB and Others  [2000] ECR I‑2135, paragraph 79; and Case C‑280/08 P Deutsche Telekom  v Commission  [2010] ECR I‑0000, paragraph 34). Such a plea in law must therefore be regarded as inadmissible at the appeal stage.
88. It is apparent from the case-law, as Arkema points out, that the 1998 Guidelines merely constitute rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see, to that effect, 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, paragraphs 209 and 210).