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On 3 May 2012, the Court of Justice of the European Union
("ECJ") issued its judgment on the appeals lodged by
Legris Industries and its subsidiary, Comap, against the General
Court's March 2011 judgments in the copper fittings cartel
case, ruling that both appeals should be dismissed in their
entirety. The ECJ also upheld the fine of € 46.8
million levied against Legris Industries, and confirmed that Comap
is jointly and severally liable for the payment of the fine in the
amount of €18.56 million.
In its March 2011 judgment, the General Court had upheld the
European Commission's decision to fine Legris Industries and
its 99% owned subsidiary, Comap, for their involvement in the
copper fittings cartel. According to the Commission's decision,
30 companies, amongst which Legris Industries and Comap, had
participated, at various times between 31 December 1988 and 1 April
2004, in a cartel in the copper fittings market. The infringement
consisted of price fixing, agreements on price lists and rebates,
price-increasing mechanisms, the division of national markets and
clients, exchanging commercially sensitive information,
participating in regular meetings and maintaining other contacts to
facilitate the anti-competitive conduct. The fines imposed on the
copper fittings cartelists totalled €314.76 million.
The ECJ rejected several arguments raised by Legris Industries
and Comap insofar as they were aimed at requesting the Court to
examine the factual circumstances of the cartel. The ECJ restated
that where a company challenges a Commission decision in a cartel
case, it is for the General Court alone to examine and assess the
facts capable of showing the existence of anti-competitive conduct.
The ECJ is competent only to review the legal classification of
those facts and the legal consequences drawn from them by the
General Court.
On the question of whether Legris Industries should be held
liable for the anti-competitive conduct of its subsidiary Comap,
the ECJ reiterated its position that when a parent company holds
all the capital of its subsidiary (in this case Legris owns 99% of
Comap), there is a rebuttable presumption that that parent company
exercises a decisive influence over the conduct of its subsidiary.
It further reaffirmed the principle established in Akzo
Nobel that as long as this presumption has not been rebutted,
the Commission may impute the anti-competitive conduct of the
subsidiary to its parent company (see VBB on Competition Law,
Volume 2009, No. 9, available at
www.vbb.com).
In this regard, it is worth noting that the ECJ rejected the
argument put forward by Legris Industries that the General Court
applied a de facto irrebuttable presumption of parental
liability. According to Legris Industries, the irrebuttable
character of the presumption resulted from the way the General
Court assessed the evidence that aimed at showing that Legris
Industries had not exercised decisive influence over the conduct of
its subsidiary. Legris Industries alleged that the General Court
had rejected this evidence on the basis of general considerations
and not on the basis of a factual and reasoned analysis.
In rejecting this argument as inadmissible, the ECJ noted that
Legris Industries was in fact looking to obtain an appreciation of
facts previously verified by the General Court and did not raise
any question of law. In addition, the ECJ underlined that the
General Court has the discretion to consider whether the
argumentation put forward by a party in order to rebut a
presumption is sufficient or not. In this respect, the ECJ
reaffirmed that the fact that it is difficult to furnish evidence
necessary to rebut a presumption does not imply, in itself, that
the presumption is irrebuttable. According to the ECJ, that is
especially the case where the entity against which the presumption
operates is best placed to find such evidence.
The ruling illustrates the reluctance of the ECJ to scrutinise
the General Court's appreciation when it comes to evidence
aiming at rebutting the presumption of decisive control reaffirmed
in Akzo Nobel.
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