European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

In the specific situation where a parent company, whether directly or indirectly, holds  all or almost all the capital of the subsidiary  having committed an infringement of the EU competition rules, the parent company is presumed to effectively exercise a decisive influence over its subsidiary . That presumption means that it is jointly liable for the fine imposed on its subsidiary and the Commis …

Presumption of control

In the specific situation where a parent company, whether directly or indirectly, holds  all or almost all the capital of the subsidiary  having committed an infringement of the EU competition rules, the parent company is presumed to effectively exercise a decisive influence over its subsidiary . That presumption means that it is jointly liable for the fine imposed on its subsidiary and the Commission is not obliged to provide additional evidence of the lack of autonomy of the subsidiary in relation to the parent . Liability for the infringing behavior of the subsidiary can even be imputed to an intermediary undertaking and is not necessarily imputed to the ultimate parent company . The fact that the share capital of two separate commercial companies is held by the same ultimate holding company is insufficient, in itself, to establish that those two companies are an economic unit with the result that the actions of one company can be attributed to the other .

The presumption also applies where a parent company is able to exercise all the voting rights associated with its subsidiary's shares, in particular in combination with a very high majority stake in its share capital since it is in a similar situation to that of the sole owner of the latter, thus enabling it to determine its economic and commercial strategy .

The presumption, that is not based on a no-fault liability regime , is rebuttable however ; the parent undertaking can rebut it by bringing forward evidence showing that the subsidiary behaves autonomously on the market, particularly with regard to the economic, organizational and legal links it has with its subsidary . 

According to the EU judicature, the presumption of effective exercise of decisive influence does not breach the rules of ownership existing in the Member States by establishing an inequality of treatment between industrial holding companies and other parent companies, since it applies to all economic entities in the case of ownership of all or almost all of the capital of a subsidiary .

Case C-90/09 P General Quimica SA [2011] ECR p. I-1, LawLex201100000200JBJ; Case T-65/06 FLSmidth & Co. A/S, Judgment of 6 March 2012, LawLex201200000650JBJ; Case T-399/09 Holding Slovenske elektrarne d.o.o. (HSE), Judgment of 13 December 2013, LawLex201300001800JBJ, which states that the capital can be held directly or indirectly by the State.        

The participation can be slightly less than 100 %: Case T-299/08 Elf Aquitaine v Commission, LawLex201200000044JBJ; Case T-168/05 Arkema v Commission (98 %); Case T-78/06 Armando Álvarez SA [2011] ECR II-404*, Summ.pub. (98.6 %), upheld in Case C-36/12 P Armando Álvarez SA, Judgment of 22 May 2014, LawLex201400002007JBJ; Case T-344/06 Total SA and Case T-348/06 Total Nederland NV, Judgments of 27 September 2012, LawLex202100001743JBJ; Case C-508/11 P Eni v Commission, Judgment of 8 May 2013, (99.97 %). Cf. where the General Court held that the presumption does not apply where the parent company only holds 80% of the subsidiary: Case T-587/08 Fresh Del Monte Produce Inc., Judgment of 14 March 2013, LawLex201400000174JBJ.

Case T-455/14 Pirelli & C. SpA, Judgment of 12 July 2018, not available in English.

Case 107/82 AEG v Commission [1983] ECR 3151, LawLex200500004025JBJ; Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, LawLex200400003577JBJ; Case T-354/94 Stora Kopparbergs Bergslags v Commission [2002] ECR II-843, LawLex200400003609JBJ; Case T-399/09 Holding Slovenske elektrarne d.o.o., Judgment of 13 December 2013, LawLex201300001800JBJ, the fact that the parent company only temporarily holds the capital of the subsidiary responsible for the infringement as it intends to dispose of its shareholding at some point in the future, does not prevent it from having a decisive influence over the behavior of that subsidiary on the market until that disposal has taken place; Case T-395/09 Gigaset AG, Judgment of 23 January 2014, not available in English, finding that a company which purchases an undertaking in difficulty in order to reorganize it and resell it at a profit has necessarily exercised a decisive influence on its behavior on the market.                                                         

Case T-25/06 Alliance One International, LawLex201200000030JBJ; Case T-168/05 Arkema v Commission, cited above; Case T-412/10 Roca, Judgment of 16 September 2013, LawLex202000001883JBJ. This remedy applies even if other requirements are imposed in several Member States, in the US and by analogy in matters concerning State aid where it is necessary to verify whether a measure taken by an undertaking is attributable to the State: Case T-299/08 Elf Aquitaine, cited above; also see Cases C-654/11 P Transcatab SpA, not available in English and Case C-593/11 P Alliance One International Inc., Judgment of 13 December 2012, LawLex202100001686JBJ, stating that while the Commission may, in principle limit itself to establishing the ownership of the entire capital of the subsidiaries by their parent companies in order to justify imputing the infringement to the latter, it is still required to adopt a position on the arguments relied on by the parties in reply to the Statement of Objections which seek to rebut the presumption that decisive influence was actually exercised.

Case T-384/09 SKW Stahl-Metallurife Holding AG, Judgment of 23 January 2014, not available in English.

Case T-531/15 Coveris Rigid France, Judgment of 6 December 2018, LawLex201800001885JBJ.

Case T-419/14 The Goldman Sachs Group Inc., Judgment of 12 July 2018, LawLex201800001066JBJ, upheld in Case C-595/18 P The Goldman Sachs Group Inc., Judgment of 27 January 2021, The Goldman Sachs Group Inc., LawLex202100000265JBJ. 

Case T-496/07 Repsol Lubricantes y Especialidades SA, Judgment of 16 September 2013, not available in English.

Contrary to the claims of certain undertakings, the presumption does not become irrebuttable solely because their national law imposes an obligation for control over subsidiaries insofar as it is not possible to rely on national rules to escape the application of European law: Case T-361/06, Ballast Nedam v Commission, LawLex201700000989JBJ.

 Case T-175/05 Akzo Nobel NV [2009] ECR II-184, Summ.pub, LawLex201000000105JBJ; Case C-520/09 P Arkema SA [2011] ECR I-8901 LawLex201200000029JBJ; Case T-384/09 SKW Stahl-Metallurife Holding AG, cited above, stressing that the parent company must demonstrate that it does not exercise a decisive influence itself and not that another company had a decisive influence on the wholly-owned subsidiary.                                                         

European Competition Law

256. Presumption of control

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256. Presumption of control

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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