Case T-112/05

Akzo Nobel NV and Others

v

Commission of the European Communities

(Competition – Cartels in the vitamin products sector – Choline chloride (Vitamin B4) – Decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area – Attributability of the infringement)

Summary of the Judgment

1.      Actions for annulment – Conditions of admissibility – Action brought by several companies in a group againt a Commission decision fining them jointly and severally

(Art. 230 EC)

2.      Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries

(Arts 81 EC and 82 EC)

3.      Competition – Fines – Amount – Determination – Maximum amount – Calculation

(Council Regulation No 1/2003, Art. 23(2))

1.      In one and the same action for annulment brought by several companies in a group against a Commission decision fining them jointly and severally, reasons of procedural economy justify not examining a plea of inadmissibility raised against some of those companies where the action is nevertheless admissible in relation to others, with the result that the court must examine the action as a whole, and that, having regard to the pleas submitted in the application, possible annulment might not benefit the companies whose action is claimed to be inadmissible.

(see paras 31-32)

2.      The Commission is able to address a decision imposing a fine for breach of the competition rules by a subsidiary to the parent company of a group of companies not because of a relationship between the parent and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because those companies constitute an economic entity and therefore a single undertaking within the meaning of Articles 81 EC and 82 EC if they do not independently determine their own conduct on the market.

In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement, there is a simple presumption that the parent company exercises decisive influence over the conduct of its subsidiary, and that they therefore constitute a single undertaking within the sense above. It is thus for a parent company which disputes before the Community judicature a Commission decision fining it for the conduct of its subsidiary to rebut that presumption by adducing evidence to establish that its subsidiary was independent. It is therefore sufficient for the Commission to show that the entire capital of a subsidiary is held by the parent company in order to conclude that the parent company exercises decisive influence over its commercial policy. The Commission will then be able to hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary, unless the parent company proves that the subsidiary does not, in essence, comply with the instructions which it issues and, as a consequence, acts autonomously on the market.

Whilst it is true that, when analysing the existence of a single economic entity among a number of companies forming part of a group, the Community judicature has examined whether the parent company was able to influence pricing policy, production and distribution activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing, it cannot be inferred that it is only those aspects that are covered by the concept of the business policy of a subsidiary for the purposes of the application of Articles 81 EC and 82 EC with respect to the parent company. On the contrary, it is for the parent company to put before the Court any evidence relating to the economic and legal organisational links between its subsidiary and itself which in its view are apt to demonstrate that they do not constitute a single economic entity. When making its assessment the Court must take into account all the evidence adduced by the parties, the nature and importance of which may vary according to the specific features of each case.

Thus, in the case of a company which holds 100% of the capital of its subsidiaries and plays a significant role in several essential aspects of their strategy by reserving the power of final decision with respect to a range of matters that define their course of conduct on the market, the presumption that the parent company exercises decisive influence over its subsidiaries’ policies cannot be rebutted by the fact that decisions concerning the specific area in which the infringement occurred are, in principle, taken by the subsidiaries, or by the fact that the group is structured at two levels with the aim of removing commercial policy in the strict sense from the control of the parent company. Attribution of an infringement by a subsidiary to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred. On the other hand, the economic and legal organisational links between the parent company and its subsidiary may establish that the parent exercises influence over the subsidiary’s strategy and therefore that they can be viewed as a single economic entity, without there being any need to ascertain whether the parent company exercised influence over the anti-competitive conduct at issue.

(see paras 58, 60, 62, 64-65, 82-83, 85)

3.      The fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question.

(see paras 90-91)