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2017-314 Report – Akzo Nobel and Others v Commission

Court Court of Justice
Date of ruling 27 April 2017
Case name (short version)
Akzo Nobel and Others v Commission
Case Citation Case C-516/15 P

ECLI:EU:C:2017:314

Key words Appeal —Agreements, decisions and concerted practices — European markets in tin stabilisers and in ESBO/esters heat stabilisers — Price fixing, market allocation and exchange of commercially sensitive information — Whether the unlawful conduct of the subsidiaries may be attributed to the parent company — Regulation (EC) No 1/2003 — Article 25(1) — Limitation period for the imposition of penalties on subsidiaries — Effects on the legal position of the parent company
Basic context By their appeal, Akzo Nobel NV, Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV ask the Court to set aside the judgment of the General Court of the European Union of 15 July 2015, Akzo Nobel and Others v Commission (T‑47/10, ‘the judgment under appeal’, EU:T:2015:506), by which the General Court upheld only in part their action for, principally, annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers) (‘the decision at issue’), and, in the alternative, a reduction of the amount of the fines imposed on them.

 

Points arising – admissibility 38       According to settled case-law, to allow a party to put forward for the first time before the Court of Justice pleas and arguments which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the Court’s jurisdiction is thus confined to examining the assessment by the General Court of the pleas and arguments aired before it (see, in particular, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 54).

 

Points arising – substance 46      In this regard, it must be noted, in the first place, that the authors of the Treaties chose to use the concept of an undertaking to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to Article 81 or 82 EC, now Article 101 or 102 TFEU (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 102).

47      It is apparent from the case-law of the Court of Justice that EU competition law refers to the activities of undertakings and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (judgment of 11 December 2007, ETI and Others, C‑280/06, EU:C:2007:775, paragraph 38).

48      The Court has also stated that, in the same context, the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (judgment of 20 January 2011, General Química and Others v Commission, C‑90/09 P, EU:C:2011:21, paragraph 35).

49      When such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 95).

50      In the second place, the infringement of EU competition law must be imputed unequivocally to a legal person on whom fines may be imposed and to whom the statement of objections must be addressed (see, to that effect, judgment of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 57).

51      Neither Article 23(2)(a) of Regulation No 1/2003 nor the case-law lays down which legal or natural person the Commission is obliged to hold responsible for the infringement or to punish by the imposition of a fine (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 159).

52      By contrast, according to the settled case-law of the Court, the unlawful conduct of a subsidiary may be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, but essentially carries out the instructions given to it by the parent company, having regard especially to the economic, organisational and legal links between those two legal entities (see, to that effect, judgments of 14 July 1972, Imperial Chemical Industries v Commission, 48/69, EU:C:1972:70, paragraphs 131 to 133; of 25 October 1983, AEG-Telefunken v Commission, 107/82, EU:C:1983:293, paragraphs 49 to 53; of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 157; and of 17 September 2015, Total v Commission, C‑597/13 P, EU:C:2015:613, paragraph 35).

53      That is the case because, 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 EU competition law (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 157).

54      On that aspect, in the particular case in which a parent company holds all or almost all of the capital in a subsidiary which has committed an infringement of the EU competition rules, there is a rebuttable presumption that that parent company actually exercises a decisive influence over its subsidiary (see, to that effect, judgment of 26 November 2013, Groupe Gascogne v Commission, EU:C:2013:770, paragraph 38).

55      Such a presumption implies, unless it is rebutted, that the actual exercise of decisive influence by the parent company over its subsidiary is established and gives grounds for the Commission to hold the former responsible for the conduct of the latter, without having to produce any further evidence (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 30).

56      It must be pointed out, in the third place, that, according to the well-established case-law of the Court, the parent company to which the unlawful conduct of its subsidiary is attributed is held individually liable for an infringement of the EU competition rules which it is itself deemed to have infringed, because of the decisive influence which it exercised over the subsidiary and by which it was able to determine the subsidiary’s conduct on the market (see, to that effect, judgments of 14 July 1972, Imperial Chemical Industries v Commission, 48/69, EU:C:1972:70, paragraphs 140 and 141; of 16 November 2000, Metsä-Serla and Others v Commission, C‑294/98 P, EU:C:2000:632, paragraphs 28 and 34; of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraph 55; of 10 April 2014, Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 49; and of 8 May 2014, Bolloré v Commission, C‑414/12 P, not published, EU:C:2014:301, paragraph 44).

57      As has been observed in paragraph 49 of the present judgment, EU competition law is based on the principle of the personal responsibility of the economic unit which has committed the infringement. Thus, if the parent company is part of that economic unit, it is regarded as personally jointly and severally liable with the other legal persons making up that unit for the infringement committed (see, to that effect, judgment of 10 September 2009, Akzo Nobel and Others v Commission, C‑97/08 P, EU:C:2009:536, paragraph 77).

58      That is why the joint and several liability as between two companies constituting an economic unit cannot be reduced, as regards the payment of the fine, to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary (see, to that effect, judgments of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraphs 55 and 56, and of 19 June 2014, FLS Plast v Commission, C‑243/12 P, EU:C:2014:2006, paragraph 107).

59      In the fourth place, according to the case-law of the Court, in a situation in which the parent company’s liability results exclusively from the direct participation of its subsidiary in the infringement and the two companies have brought parallel actions having the same object, the General Court may, without ruling ultra petita, take account of the annulment of the finding that the subsidiary committed an infringement for a certain period and make a corresponding reduction in the amount of the fine imposed on the parent company jointly and severally with its subsidiary (see, to that effect, judgment of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 34, 38, 39 and 49).

60      The Court has stated in that respect, first, that, in order to hold any entity within an economic unit liable, it is necessary to prove that one entity at least has committed an infringement of the EU competition rules and that that fact be noted in a decision which has become definitive, and, secondly, that the reason for which it was found that the subsidiary had not acted unlawfully is irrelevant (see, to that effect, judgment of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 37 and 38).

61      It is in that context that the Court referred to the wholly derivative nature of the liability incurred by the parent company solely because of a subsidiary’s direct participation in the infringement (see, to that effect, judgment of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 34, 38, 43 and 49). In that situation, the parent company’s liability arises from its subsidiary’s unlawful conduct, which is attributed to the parent company in view of the economic unit formed by those companies. Consequently, the parent company’s liability necessarily depends on the facts constituting the infringement committed by its subsidiary and to which its liability is inextricably linked.

62      For the same reasons, the Court has made clear that, in a situation in which no factor individually reflects the conduct for which the parent company is held liable, the reduction of the amount of the fine imposed on the subsidiary jointly and severally with its parent company must, in principle, where the necessary procedural requirements are satisfied, be extended to the parent company (see, to that effect, judgment of 17 September 2015, Total v Commission, C‑597/13 P, EU:C:2015:613, paragraphs 10, 37, 38, 41 and 44).

70      Admittedly, as the General Court in essence underlined in paragraphs 125 and 126 of the judgment under appeal, the fact that the Commission’s power to impose penalties is time-barred pursuant to Article 25(1)(b) of Regulation No 1/2003 means that a penalty can no longer be imposed on the companies in respect of which the limitation period has expired.

71      By contrast, the fact that penalties can no longer be imposed on certain companies because the limitation period has expired does not preclude another company, which is considered personally responsible and jointly and severally liable with those companies for the same anticompetitive behaviour, and in respect of which the limitation period has not expired, from having proceedings instituted against it.

72      Contrary to the appellants’ contention, the fact that Akzo Nobel’s liability in respect of the first infringement period arises exclusively from the direct participation of its subsidiaries in the cartels does not alter that conclusion.

73      First, the anticompetitive activities in relation to the first infringement period are nevertheless regarded as having been carried out by Akzo Nobel itself, since it formed an economic unit, within the meaning of the case-law of the European Union, with Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV.

74      Secondly, as the Advocate General stated, in essence, in points 58 and 59 of his Opinion, it is apparent from the case-law of the Court mentioned in paragraph 62 of the present judgment that factors specific to the parent company may justify assessing the parent company’s liability and that of its subsidiary differently, even if the liability of the former is based exclusively on the unlawful conduct of the latter.

 

Intervention
Interim measures
Order 1.      Dismisses the appeal;

2.      Orders Akzo Nobel NV, Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV to pay the costs.

Fine changed No
Case duration 31 months
Judge-rapporteur da Cruz Vilaça
Advocate-general Wahl
Notes on academic writings

 

About the Author

Kiran Desai

Desai Kiran

Kiran S. Desai has over 25 years’ experience of private practice in EU competition law. He is engaged in all aspects of EU competition law, including litigation before the courts and has written extensively on EU competition law matters. He is a partner at HVG advocaten-avocats, based in Brussels, and is the EU Competition Law Leader for EY Law.


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