Case T‑361/06

Ballast Nedam NV

v

European Commission

(Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Attributability of the unlawful conduct — Rights of the defence — Effects in relation to third parties of a judgment annulling a measure)

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

1.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — No obligation

(Arts 81 EC and 82 EC)

2.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Reversal of the burden of proof and infringement of the principle of the presumption of innocence — None

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2)

3.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — National law imposing certain obligations on parent companies in respect of their subsidiaries — No effect

(Arts 81 EC and 82 EC)

4.      Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Correction of an error of reasoning during the proceedings before the Court — Not permissible — Additional evidence designed to complement a statement of reasons that was already sufficient and reply to arguments of the applicant — Lawfulness

(Arts 81 EC, 82 EC and 230 EC; Council Regulation No 1/2003, Art. 2)

5.      Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Assessment on a case-by-case basis

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1))

6.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Infringement, by the Commission, of the defence rights of the subsidiary through an omission in the statement of objections — Annulment of the Commission’s decision fining the subsidiary — Effects of the judgment on the fine imposed on the parent company — None

(Arts 81 EC and 82 EC)

1.      See the text of the decision.

(see paras 24-29, 35-36)

2.      See the text of the decision.

(see para. 30)

3.      See the text of the decision.

(see paras 32-33)

4.      In an action for annulment under Article 230 EC against a Commission decision in a competition matter, although the Commission cannot, in support of the contested decision, produce new inculpatory evidence not contained in the decision, it is nevertheless entitled to respond to the applicant’s arguments where the applicant seeks to establish, on the basis of documents other than those produced by it to the Court, that the Commission’s assertion is incorrect in fact. The author of a contested decision is entitled to provide explanations at the stage of the judicial proceedings in order to supplement a statement of reasons which is already adequate in itself, since those explanations may serve a useful purpose in relation to review by the EU judicature of the adequacy of the grounds of the decision, since they enable the institution to explain the reasons underlying its decision.

(see para. 49)

5.      See the text of the decision.

(see paras 63-66, 69)

6.      A company regarded as forming a single undertaking with its subsidiary within the meaning of Article 81 EC cannot argue that the General Court’s reduction of the fine imposed on its subsidiary has the consequence that the fine imposed jointly and severally on it as the parent company should also be reduced, where that decision of the General Court results from the fact that the Commission infringed the defence rights of the subsidiary by failing to inform it, in the statement of objections, that it held it liable for the infringement committed by a second subsidiary in its capacity as the parent company of the latter, and not in its capacity as legal successor.

Since the General Court did not clear that second subsidiary of infringing conduct and, and the Commission presumed the exercise of decisive influence by the parent company of the group over that second subsidiary on the basis of indirect holding of the whole of its capital, the Commission was able to attribute the infringing conduct of the second subsidiary to the parent company of the group and impose joint and several liability for the fine upon it. The Commission has a discretion in deciding which are the entities within an undertaking which it regards as responsible for an infringement. The parent company of the group may therefore be held solely liable for the conduct of its second subsidiary.

(see paras 72-75)