23 mai 2011

Autonomous concept of enterprise in EU competition law, Elf Aquitaine SA, T-299/08

The EU General Court made further precisions on the concept of enterprise in EU competition law. Elf Aquitaine SA controlling 97 % of shares of Arkema SA got a fine of € 15 890 000 for the participation of the latter company in an agreement on quantity and prices at the EEA chlorate of sodium market.

The EU General Court repeated Akzo Nobel, C‑97/08 P, § 55, in saying that several distinct moral persons, and even physical persons, may be considered as a sole “enterprise” if they form an economic unit (§ 46). It must be the case when those different persons do not determine autonomously their market behavior (Akzo Nobel, § 58; Elf Aquitaine, § 49). In such cases the controlling enterprise will be sanctioned even without a direct participation (Akzo Nobel, § 59; Elf Aquitaine, § 50), unless it proves contrary.

The General Court interpreted that the legal autonomy principle is not applicable to cases when one company controls quasi-totality of the other’s shares (§ 70).

Elf Aquitaine SA wondered why it had been the only mother company that had been subjected to an individual fine. The Court replied that it is not an individual fine but 70 % of the common fine for Elf Aquitaine SA and Arkema SA. The 3 judges further interpreted that such a division had to be made because Elf Aquitaine SA had the highest general profit among the participants of the violation, and thus could easier find the money (§ 318). This point is a very interesting development of case law.

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