Pre-Stressing Steel Cartel Case – Assessment Of Parent Company's Derivative Liability

On 26 October 2017, the Court of Justice of the European Union ("ECJ") dismissed appeals in the pre-stressing steel cartel case brought by four Spanish manufacturers belonging to the Spanish Celsa group (Global Steel Wire, Moreda-Riviere Trefilerías, Trefilerías Quijano and Trenzas y Cables de Acero). In the judgments, the Court rejected allegations that the General Court ("GC") had erred in upholding the Commission's infringement decision (see VBB on Competition Law, Volume 2016, No. 6, available at www.vbb.com), including in relation to the attribution of liability, the existence of a single and continuous infringement, the calculation of the fine and the applicants' ability to pay the fine (Joined Cases C-454/16 to C-456/16 P and C-458/16, Global Steel Wire and Others v Commission; Joined Cases C-457/16 and C-459/16 to C-461/16, Global Steel Wire and Others v Commission).

Under settled EU-case law, an undertaking may be held liable for violations of competition law committed by a subsidiary with a distinct legal identity, where the two nonetheless form part of a single economic unit. A subsidiary will be considered to form part of the same economic unit as its parent company where it does not determine its own market conduct independently, but instead follows the direction of its parent company. Where a parent company holds all or nearly all the capital of its subsidiary, EU law establishes a rebuttable presumption that the parent can, and in fact does, exercise decisive influence over the subsidiary's market conduct. A parent company can rebut this presumption by bringing forward sufficient evidence that its subsidiary acted autonomously on the market.

In the case at hand, the appellant companies contended that the GC had erred in law by imputing liability to Global Steel Wire (GSW) for infringements committed by several of its subsidiaries. First, they argued that the Commission had not effectively established the presumption of GSW's control over one of the infringing companies, Trefilerias Quijano (TQ), during part of the relevant period because it had failed to show that Trenzas y Cables de Acero, a company to which GSW was the successor, had controlled all or almost all of...