European Commission v Stichting Administratiekantoor Portielje and Gosselin Group NV.
Date: 2013-07-11
36. First, it should be observed that EU competition law refers to the activities of ‘undertakings’ (Joined Cases 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 Aalborg Portland and Others v Commission  [2004] ECR I‑123, paragraph 59, and Akzo Nobel and Others  v Commission , paragraph 54) and that the concept of an undertaking encompasses any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (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, and Akzo Nobel and Others  v Commission , paragraph 54). That concept must be understood as denoting an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm Gerätebau  [1984] ECR 2999, paragraph 11, and Akzo Nobel and Others  v Commission , paragraph 56).
37. When such an entity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Case C‑49/92 P Commission  v Anic Partecipazioni  [1999] ECR I‑4125, paragraph 145, and Akzo Nobel and Others  v Commission , paragraph 56).
38. With regard to the circumstances in which a legal person who is not responsible for the infringement may, nevertheless, be subject to penalties, it is the Court’s established case‑law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, the 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 ( Akzo Nobel and Others  v Commission , paragraph 58 and the case‑law cited, and Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco  v Commission and Commission v Alliance One International and Others  [2012] ECR I‑0000, paragraph 43).
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, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others , paragraph 44).
40. The Court has made clear that, in the particular case of a parent company having a 100% or virtually 100% shareholding in a subsidiary which has infringed EU rules on competition, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over its subsidiary (‘the presumption of actual exercise of decisive influence’) (Case C‑508/11 P ENI  v Commission  [2013] ECR I‑000, paragraph 47; see also, to that effect, Akzo Nobel and Others  v Commission , paragraph 60 and the case‑law cited; Case C‑521/09 P Elf Aquitaine  v Commission  [2011] ECR I‑8947, paragraphs 56 and 63; and Alliance One International and Standard Commercial Tobacco  v Commission and Commission  v Alliance One International and Others , paragraph 46).
41. 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 the parent company in order for it to be presumed 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, to that effect, Akzo Novel and Others  v Commission , paragraph 61; Elf Aquitaine  v Commission , paragraphs 57 and 63; Alliance One International and Standard Commercial Tobacco  v Commission , paragraph 47; and ENI  v Commission , paragraph 47).
45. It follows from the foregoing that the General Court erred in law in finding, first, at paragraph 39 of the judgment under appeal, that the concept of an undertaking must be considered separately from the concept that the conduct of the author of the infringement is to be imputed to its holding entity and, second, at paragraph 42 of that judgment, that ‘the parent company of an undertaking which has infringed Article 81 EC cannot be penalised by a decision implementing Article 81 EC, if it is not an undertaking itself’ and by consequently verifying, at paragraphs 43 to 50 of that judgment, whether the Commission had established that Portielje, by itself, was an undertaking for the purpose of Article 81 EC.
59. The question whether the General Court has taken the right legal criteria 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 on appeal (see, to that effect, Case C‑109/10 P Solvay  v Commission  [2011] ECR I‑0000, paragraph 51 and the case‑law cited). That is precisely the question put before the Court by the Commission in the second and third parts of its second ground of appeal, concerning paragraph 54 and paragraphs 55 to 57 respectively of the judgment under appeal.
60. As is apparent from the analysis of the first ground of appeal, in order to establish whether the author of the infringement decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie that author to its holding entity, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others  v Commission , paragraphs 73 and 74; Elf Aquitaine  v Commission , paragraph 58; and Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraph 45).
66. In so deciding, the General Court erred in law. It is clear from the Court’s settled case‑law cited at paragraph 60 above that, in order to establish whether the author of the infringement decides independently upon its conduct on the market, it is necessary for account to be taken of all the relevant factors relating to the economic, organisational and legal links which tie that author to its holding entity and, therefore, of economic reality. The mere fact that the holding entity did not adopt any management decision in a manner consistent with the formal requirements of company law will not therefore suffice for that purpose.
68. In so doing, the General Court also failed to have regard to the case‑law cited at paragraph 60 above, in particular, as observed by the Advocate General at point 74 of her Opinion, the fact that a finding that the author of the infringement and its holding entity form an economic unit does not necessarily presuppose the adoption of formal decisions by statutory organs and that, on the contrary, that unit may also have an informal basis, consisting inter alia in personal links between the legal entities comprising such an economic unit.
71. According to the Court’s case‑law, a presumption remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded. The fact that it is difficult to adduce the necessary evidence to the contrary in order to rebut the presumption or the mere fact that an entity does not, in a given case, produce evidence capable of rebutting a presumption does not, in itself, mean that that presumption cannot in fact be rebutted, especially where, as is the case with the presumption at issue, the entities against which the presumption operates are those best placed to seek that evidence within their own sphere of activity ( Elf Aquitaine  v Commission , paragraphs 62, 66 and 70).
95. However, it is clear, first, that the object of the agreements in which Gosselin participated was, as is apparent from the very nature of those agreements and as the Commission rightly demonstrated in the contested decision, to fix an artificially high price level for the removal services in question and to share customers for those services. The agreements therefore constituted forms of collusion that were particularly injurious to the proper functioning of normal competition. Gosselin’s claim that that was not the case and the fact that it did not participate in the agreement on prices are irrelevant in that regard and cannot, therefore, lead to the conclusion that the Commission erred in its classification of the agreements on commissions and cover quotes as agreements whose object was to restrict competition appreciably for the purpose of Article 81 EC.
99. Second, it should be noted that, according to the Court’s case law, if an agreement, decision or concerted practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, the effect must not be insignificant (Case C‑238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I‑11125, paragraph 34 and the case-law cited, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/05 P Erste Group Bank and Others  v Commission [2009] ECR I‑8681, paragraph 36).
100. Thus, the Court has already held that a cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the FEU Treaty is designed to bring about and is therefore capable of affecting trade between Member States within the meaning of Article 81(1) EC (see, to that effect, Case C‑35/99 Arduino [2002] ECR I‑1529, paragraph 33; Asnef-Equifax and Administración del Estado , paragraph 37 and the case-law cited; and Erste Group Bank and Others  v Commission , paragraph 38) and that, where the services concerned have a cross border dimension, that is a relevant factor in determining whether trade between Member States is affected within the meaning of that provision (see, by analogy, Case 311/85 Vereniging van Vlaamse Reisbureaus  [1987] ECR 3801, paragraphs 18 and 21).
111. However, it is clear from the analysis of the first part of the third plea in law invoked before the General Court that that premiss is incorrect, since the Commission was fully entitled to classify the agreements on commissions and cover quotes as agreements on prices and customer‑sharing and such agreements, like agreements on prices, clearly form part of the category of the most serious restrictions of competition. Accordingly, that argument must be rejected as must, on the same ground, Portielje’s claim that the fine imposed on Gosselin should be reduced by the Court in the exercise of its unlimited jurisdiction.