Itochu v Commission (Competition): ECFI 30 Apr 2009

ECJ Competition Agreements, decisions and concerted practices – Market for video games consoles and games cartridges compatible with Nintendo games consoles – Decision finding an infringement of Article 81 EC – Limitation of parallel exports Attributability of the infringement – Fines – Differential treatment – Deterrent effect – Duration of the infringement – Attenuating circumstances Cooperation during the administrative procedure.
The court discussed the nature of an entity within European law.
Held: The fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of its conduct being imputed to the parent company, especially where the subsidiary does not independently determine its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company . . In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement, the Court of Justice stated in Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 50, that it was not necessary to ascertain whether that company had in actual fact influenced the commercial policy of its subsidiary, in so far as that subsidiary necessarily follows the policy laid down by the same bodies as, under its statutes, determine the parent company’s policy. In such a case, there is a simple presumption that the parent company exercises decisive influence over the conduct of its subsidiary. It is thus for a parent company which disputes before the Community judicature a Commission decision fining it for the conduct of its subsidiary to rebut that presumption by adducing evidence to establish that its subsidiary was independent . . That being so, it is sufficient for the Commission to show that the entire capital of a subsidiary is held by the parent company in order to conclude that the parent company exercises decisive influence over its commercial policy. The Commission will then be able to hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary, unless the parent company proves that the subsidiary does not, in essence, comply with the instructions which it issues and, as a consequence, acts autonomously on the market.’
T-12/03, [2009] EUECJ T-12/03
Cited by:
CitedCrest Nicholson Plc v Office of Fair Trading Admn 24-Jul-2009
The company challenged as unfair its treatment by the respondent in imposing fines for anti-competive behaviour. The claimant was successor of the company who had misbehaved, but the claimant no longer operated in the area and had no employees from . .

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Updated: 14 February 2021; Ref: scu.342034