Case T-185/06

L’Air liquide, société anonyme pour l’étude et l’exploitation des procédés Georges Claude

v

European Commission

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Duty to state reasons)

Summary of the Judgment

1.      Competition – Community rules – Infringements – Attribution

(Art. 81 EC)

2.      Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision relating to several addressees – Need for an adequate statement of reasons in particular with respect to the entity which must bear the liability for an infringement

(Arts 81 EC and 253 EC)

3.      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

(Arts 81 EC and 253 EC)

1.      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. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC.

In the specific case of a parent company holding 100% of the capital of a subsidiary which has infringed the European Union competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, secondly, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by the parent company in order to presume 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 liable for the infringement at issue, 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.

In order to ascertain whether a subsidiary determines its conduct on the market independently, account must be taken of all the relevant factors relating to economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list.

(see paras 21-25)

2.      As regards the statement of reasons for a Commission decision taken in application of Article 81 EC, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance.

Where a decision taken in application of Article 81 EC relates to several addressees and raises a problem of imputing liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Thus, with regard to a parent company held liable for the offending behaviour of its subsidiary, such a decision must contain a detailed statement of reasons for imputing the infringement to that company.

In that context, where, in its reply to the statement of objections, an undertaking relies on all the circumstances characterising the links between itself and its subsidiary at the time of the infringement, pleading, inter alia, the fact that that subsidiary’s activity was very specific in relation to the other activities of the group, the lack of overlap in the directors and employees of the companies concerned, the widely defined powers of the subsidiary’s directors, the fact that it has its own departments relating to commercial activities, and the fact that it acts independently in the preparation of strategic projects, and that the matters thus submitted are not mere contention but contain a series of concrete items of evidence annexed to the statement of objections, the Commission is required to adopt a position on those arguments, examining whether, in the light of all the relevant matters relating to economic, organisational and legal links between the companies concerned, the parent company has demonstrated that its subsidiary acted independently on the market, and, if necessary, to set out the reasons why it is of the view that the matters submitted by the parent company are inadequate to rebut the presumption at issue. The Commission’s duty to state reasons for its decision on this issue is clearly evident from the rebuttable nature of the presumption relating to a parent company’s exercise of decisive influence over its wholly-owned subsidiary, in order to rebut which the parent company is required to produce evidence of all the economic, organisational and legal links between itself and its subsidiary.

(see paras 64-65, 70, 72-75)

3.      The statement of reasons for a Commission decision taken in application of Article 81 EC must in principle be notified to the party concerned at the same time as that decision adversely affecting it. A failure to state the reasons cannot thus be remedied by the fact that the party concerned learns the reasons for the decision during the proceedings. Therefore, the failure to state reasons cannot be remedied in the course of the proceedings.

(see paras 81-82)