Case T‑543/08

RWE AG

and

RWE Dea AG

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Paraffin waxes market — Slack wax market — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Liability of a parent company for the infringements of the competition rules committed by its subsidiary and by a joint venture partially owned by it — Decisive influence exercised by the parent company — Presumption where the parent company holds 100% of the shares — Succession of undertakings — Proportionality — Equal treatment — 2006 Guidelines on the method of setting fines — Unlimited jurisdiction’

Summary — Judgment of the General Court (Third Chamber), 11 July 2014

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable presumption — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption

   (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

2. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Applicability to the imputation to parent companies of liability for an infringement committed by their joint venture

   (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

3. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Imputation of anti-competitive conduct of the joint venture to two parent companies holding it in equal shares — Conditions — Effective exercise of a determinant influence by the two parent companies — Concept of joint management — Burden of proof on the Commission

   (Art. 81 EC; Council Regulation No 139/2004)

4. Competition — Fines — Amount — Determination — Criteria — Reduction of the amount of the fine for cooperation of the undertaking concerned — Conditions — Need for conduct which facilitated the Commission’s finding of an infringement — Discretion of the Commission

   (Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2002/C 45/03)

5. Competition — Administrative procedure — Observance of the rights of the defence — Duty to act within a reasonable time — No obligation on the Commission to warn the undertakings concerned of the possibility that measures of investigation or prosecution may be adopted before any statement of objections is sent

   (Art. 81 EC; Council Regulation No 1/2003)

6. 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 — Scope

   (Arts 81 EC and 253 EC)

7. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last complete year of the infringement — Exceptional character thereof — Larger reference period taken into consideration — Average turnover during the reference period exceeding that of the previous period — No breach of principle of proportionality

   (Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 6 and 13)

8. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope

   (Art. 261 EC; Council Regulation No 1/2003, Art. 31)

1.  See the text of the decision.

   (see paras 25-28, 32, 36-44, 49, 50, 59-62, 66, 67, 69)

2.  In competition matters, the conduct of a subsidiary may be imputed to the parent company, on the ground that they belong to the same undertaking, where that subsidiary does not decide independently upon its conduct on the market, because it is under the decisive influence of the parent company in that respect.

   The market conduct of the subsidiary is under the decisive influence of the parent company in particular where the subsidiary carries out in all material respects the instructions given to it by the parent company.

   The subsidiary’s conduct on the market is, in general, also under the decisive influence of the parent company where the latter retains only the power to define or approve certain strategic commercial decisions, where appropriate by its representatives in the bodies of the subsidiaries, while the power to define the commercial policy stricto sensu of the subsidiary is delegated to the managers responsible for its operational management, chosen by the parent company and representing and promoting the parent company’s commercial interests.

   Those principles are also applicable to the imputation of liability to one or more parent companies for an infringement committed by their joint venture.

   (see paras 29-31, 33)

3.  In order to impute the anti-competitive conduct of a joint venture to the two parent companies which hold it in equal shares, the Commission cannot, in application of Article 81 EC, rely on the mere ability to exercise decisive influence, such as that applied in the context of the application of Regulation No 139/2004 when establishing control, without its being necessary to ascertain whether that influence was in fact exercised. On the contrary, it is, in principle, for the Commission to demonstrate such decisive influence on the basis of factual evidence. Such evidence includes the accumulation of posts by the same natural persons in the management of the parent company and that of its subsidiary or joint venture, or the fact that those companies were bound to follow the instructions issued by their single management and could not adopt conduct on the market independently of it.

   Moreover, the effective exercise of decisive influence by one or more parent companies on the commercial conduct of the joint venture can also be demonstrated by examining the way in which decisions are taken within the latter. Even if the power or the possibility to determine the commercial decisions of the joint venture does arises, as such, solely from the mere ability to exercise decisive influence over its commercial policy and thus from the concept of ‘control’ within the meaning of Regulation No 139/2004, the Commission and the Courts of the European Union may presume that the legislative provisions and the terms of the agreements relating to the functioning of that undertaking, in particular the terms of the contract setting up the joint venture and the shareholders’ agreement on votes, were implemented and observed. To that extent, examination of the actual exercise of decisive influence over the commercial conduct of the joint venture may consist in an abstract analysis of the documents signed before it began to function, like the analysis concerning control. However, since the examination relating to the actual exercise of decisive influence is retrospective and may therefore be based on specific evidence, both the Commission and the parties concerned may adduce evidence that the commercial decisions of the joint venture were determined according to different procedures from those arising solely from the abstract examination of the agreements relating to the functioning of the joint venture.

   The parent companies’ influence on the operational management of the joint venture, exercised through the members of the management board of the joint venture whom they had appointed, is wholly relevant for the appraisal of the existence of an economic unit between the parent companies and the joint venture. However, that the Commission has not adduced any firm evidence to show that the joint venture had been managed in close collaboration by the two parent companies and that the decisions taken within the management board reflected the will of each of the parent companies held liable. Such a finding could not be deduced from the abstract examination of the agreements relating to the functioning of the joint venture. Nor has the Commission produced any concrete evidence in that respect, such as, for example, minutes of board meetings.

   It follows that, where one of the two parent companies has adduced relevant evidence that there was no joint management of the joint venture, the Commission cannot, in order to establish such joint management, base its assessment merely on the terms of the joint venture agreement.

   (see paras 101, 102, 107, 108, 114, 115, 119, 123, 124)

4.  See the text of the decision.

   (see paras 140-147, 151, 162-168)

5.  See the text of the decision.

   (see paras 175-179)

6.  See the text of the decision.

   (see paras 188-213)

7.  See the text of the decision.

   (see paras 215-227)

8.  See the text of the decision.

   (see paras 256-258)