Court Of Justice Annuls General Court's 'Elf Aquitaine' And 'Arkema' Rulings

By decision of 19 January 20051, the European Commission imposed fines on several companies, including Elf Aquitaine SA and its subsidiary at the material time, Arkema SA (formerly Atofina SA), relating to a cartel on the market for monochloroacetic acid2.

According to the Commission, from 1984 to 1999 the members of the cartel were parties to an agreement to maintain their market shares through a volume and customer allocation system. They also exchanged information on prices and examined, at regular multilateral meetings, actual sales volumes and prices so as to monitor the implementation of agreements.

The Commission imposed a fine of €45 million, jointly and severally, on Elf Aquitaine and Arkema. In addition, it imposed an increase for repeated infringement on Arkema alone, by virtue of its participation in an earlier cartel3, since, at the time of that first infringement, Arkema was not yet controlled by Elf Aquitaine. Thus, Arkema was also fined, individually €13.5 million.

The companies brought two separate actions before the Court of First Instance (hereinafter CFI, currently General Court) seeking annulment of the Commission's Decision or a reduction of the amount of the fines imposed on them.

By two judgments delivered on 30 September 20094, the CFI rejected all the arguments put forward by Elf Aquitaine and Arkema. The CFI held, inter alia, that where all or nearly all of the share capital of a subsidiary is owned by its parent company, the Commission is entitled to presume that the parent company exercises a decisive influence over the commercial policy of its subsidiary. In order to rebut that presumption, the CFI said, the burden is on the parent company to adduce adequate evidence to show that its subsidiary acts independently on the market. The CFI thus considered that the Commission was correct in considering that joint and several liability for the infringements committed by Arkema should be imputed to Elf Aquitaine, since it had failed to adduce sufficient evidence.

By two separate appeals, Elf Aquitaine and Arkema appealed to the Court of Justice, asking the Court to set aside the judgments of the CFI or reduce the amounts of their fines. The Court of Justice decided the cases by judgments of 29 September 20115.

As regards Elf Aquitaine, the Court noted that where a decision in a competition law case relates to several addressees and concerns the liability for an infringement, it must include an adequate statement of...