Keywords
Summary

Keywords

1 Competition - Community rules - Infringement by a subsidiary - Responsibility attributed to the parent company - Conditions

2 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

3 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Reference year - Equal treatment

(Council Regulation No 17, Art. 15(2))

Summary

1 The Commission is entitled to attribute to a parent company, representing a group of companies, reponsibility for the unlawful conduct of one of its subsidiaries where there is concrete evidence implicating the parent company in the subsidiary's anti-competitive actions. That is the position where a member of the parent company's management board has participated, as a representative of its subsidiary, in meetings between bodies engaged in discussions with an anti-competitive object, and has even presided over meetings held by the central body of a cartel.

The Commission is also entitled to attribute to the parent company responsibility for the conduct of a second subsidiary which has participated in meetings of some of those bodies, since, in involving itself in the participation of one of its subsidiaries in the anti-competitive actions, the parent company is aware, and must also approve of, that subsidiary's participation in the infringement in which the first subsidiary took part.

2 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

In the case of a decision imposing fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Moreover, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees thereof to verify that the level of the fine is correct and to assess whether there has been any discrimination.

3 The principle of equal treatment requires that, when the Commission determines the amount of the individual fines to be imposed on a number of undertakings for infringement of the Community competition rules, the turnover figure used must relate to the same reference year.