Memo: Antitrust: Commission welcomes Court judgment in Akzo Nobel case

The European Commission welcomed the judgment by the European Court of Justice (Case C- 97/08) on 10 September, 2009, dismissing in its entirety Akzo Nobel's appeal of a 2007 judgment of the Court of First Instance (Case T-112/05). The 2007 judgment had confirmed a Commission decision of 2004 imposing a fine for cartel activities regarding choline chloride, a feed additive, not only on certain Akzo Nobel subsidiaries that directly participated in the cartel but also, jointly and severally, on the group's parent company Akzo Nobel NV. Today’s judgment was important because it confirmed the Commission finding that a parent company may be held liable for anti-competitive behaviour of its subsidiaries even if did not itself participate in those activities. The Court confirmed that what matters is whether a parent company forms a single economic unit together with its subsidiaries. The Court ruled that a 100% shareholding of a parent company in a subsidiary creates a rebuttable presumption that the parent company exercised decisive influence over the commercial policy of the subsidiary, no other elements being necessary to establish the presumption. The parent company cannot rebut the presumption merely because the subsidiary was capable of independent day-to-day market conduct. The Court confirmed that account must also be taken of other relevant factors such as economic, organisational and legal links between the parent company and the subsidiary, as the Commission did in its Decision. The appeal was consequently dismissed.

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