Case T‑517/09

Alstom

v

European Commission

(Competition — Agreements, decisions and concerted practices — Market in power transformers — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Effect on trade between Member States — Concept of an ‘undertaking’ — Imputability of the infringing conduct — Presumption of a parent company’s actual exercise of a decisive influence on the conduct of its subsidiary — Duty to state reasons)

Summary — Judgment of the General Court (Third Chamber), 27 November 2014

1.      Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case

(Art. 253 EC)

2.      Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Point in time to be taken into consideration — Point at which infringement took place

(Art. 81 EC)

3.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Attribution of the practices of a subsidiary to its parent company — Need for express statement of reasons — Decision resting exclusively on the rebuttable presumption that a determinant influence was actually exercised — Scope of the duty to state reasons

(Arts 81 EC and 253 EC)

4.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imputing to a parent company liability for the infringing conduct of its subsidiary — Correction of an error of reasoning during the proceedings before the Court — Not permissible

(Arts 81 EC and 253 EC)

5.      Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Judicial review — Factors which may be taken into account by the EU judicature — Information not contained in a decision imputing to a parent company liability for the infringing conduct of its subsidiary and concerning the question of the participation of the parent company in the infringement — Not included

(Arts 81 EC and 253 EC)

6.      Actions for annulment — Interest in bringing proceedings — Decision imputing to a parent company liability for the infringing conduct of its subsidiary — Plea based on infringement of the duty to state reasons — Plea of mandatory duty — No matters clearly giving rise to the adoption of a fresh decision identical on the substance — Interest in bringing proceedings retained

(Arts 81 EC, 230 EC and 253 EC)

1.      See the text of the decision.

(see paras 28-31)

2.      See the text of the decision.

(see paras 49-59, 62-64, 67, 68)

3.      Where a decision concerning the application of the Union competition rules affects several addressees and relates to whether and how liability for the infringement can be attributed, the decision must contain an adequate statement of reasons with respect to each of the addressees, particularly those of them who, according to that decision, must bear liability for that infringement. Thus, with regard to a parent company held liable for the offending behaviour of its subsidiary, such a decision must, in principle, contain a detailed statement of reasons for imputing the infringement to that company.

As regards, more specifically, a Commission decision which relies exclusively, with respect to certain addressees, on the presumption that they actually exercised a decisive influence, the Commission is in any event required to explain adequately to those addressees the reasons why the elements of fact and of law put forward did not suffice to rebut that presumption. The Commission’s duty to state reasons for its findings on that point flows primarily from the fact that that presumption is open to rebuttal, for the purposes of which it is necessary for those concerned to produce evidence relating to the economic, organisational and legal links between the companies concerned.

In that regard, the Commission’s statement of reasons must enable the Court to exercise its review, the latter being required to assess any evidence relating to the economic and legal organisational links between the parent company and the subsidiary apt to demonstrate that the subsidiary operates independently of its parent company and that those two companies thus do not constitute a single economic entity. Such verification is required all the more since a subsidiary’s independence in implementing its commercial policy thus forms part of the set of relevant factors enabling the parent company to rebut the presumption of its decisive influence over its subsidiary, factors whose character and importance may vary depending on the specific characteristics of each individual case.

Consequently, it is incumbent upon the Commission to examine in each particular case all matters put to it concerning the said links. Moreover, even if the Commission considers that the matters put forward by the parent company are not sufficient to overturn the presumption that it influenced the conduct of its subsidiary in the market, it is nevertheless obliged to state the reasons therefor, in so far as the matters expressed are not merely irrelevant or insignificant. The obligation to state reasons, which is one of a formal nature, requires that the reasoning on which the Commission bases its conclusions appears clearly and unequivocally in the contested decision in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community judicature to exercise its power of review.

(see paras 72-75, 102, 106)

4.      See the text of the decision.

(see paras 77, 110, 111)

5.      As regards the judicial review of a Commission decision imposing fines for breach of the competition rules, whilst it is true that the General Court’s unlimited jurisdiction regarding fines may justify the production and consideration of additional information that is not required, by virtue of the duty to state reasons, to be set out in the decision, that applies only with regard to the question whether the amount of the fine imposed on the applicant was appropriate. Accordingly, the General Court cannot take account of matters concerning the attribution to the parent company of infringing conduct by its subsidiary, in so far as the latter raises the question of the existence of an economic unit between the former and the latter and also, without doubt, the question of the applicant’s participation in the infringement penalised by the contested decision. That question falls within review of the legality of the said decision and not assessment of whether the amount of the fine imposed on the parent company was appropriate.

Moreover, whilst the EU judicature may find that the Commission committed an infringement of the duty to state reasons in the context of the determination of fines imposed for infringements of Article 81(1) EC, while stating that, in so far as the measure or decision upheld by that institution is to be confirmed as to its substance, that infringement does not lead either to the annulment of the contested decision or to an alteration of the amount of the fines, that appraisal cannot be transposed concerning the review of the legality of a Commission decision inasmuch as the Commission upheld the liability of the undertaking concerned.

(see paras 112, 114, 115)

6.      See the text of the decision.

(see paras 116, 117)