The Goldman Sachs Group v Commission (Appeal - Agreements, decisions and concerted practices - European market for power cables - Judgment) [2021] EUECJ C-595/18P (27 January 2021)

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(Appeal – Competition – Agreements, decisions and concerted practices – European market for power cables – Market allocation in connection with projects – Regulation (EC) No 1/2003 – Article 23(2) – Attributability of unlawful conduct of one company to another company – Presumption of actual exercise of decisive influence – Entity controlling 100% of the voting rights associated with the shares of another company)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 September 2018,

The Goldman Sachs Group Inc., established in New York (United States), represented by A. Mangiaracina, avvocatessa, and J. Koponen, advokat,

European Commission, represented by P. Rossi, C. Sjödin, T. Vecchi and J. Norris, acting as Agents,

composed of A. Arabadjiev, President of the Chamber, A. Kumin, T. von Danwitz, P.G. Xuereb (Rapporteur) and I. Ziemele, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By its appeal, The Goldman Sachs Group Inc. seeks to have set aside the judgment of the General Court of the European Union of 12 July 2018, The Goldman Sachs Group v Commission (T‑419/14, EU:T:2018:445; ‘the judgment under appeal’), by which the General Court dismissed its action seeking, first, the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 – Power cables) (‘the decision at issue’) in so far as it concerns the appellant and, secondly, a reduction of the fine imposed on it.

2 Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides:

‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

3 The background to the dispute, as set out in paragraphs 1 to 22 and 47 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

4 The appellant, The Goldman Sachs Group, is a company established in the United States. It is an investment bank which operates in all the major financial centres around the world. Between 29 July 2005 and 28 January 2009, it was the (indirect) parent company, through GS Capital Partners V Funds (‘the GSCP V Funds’) and other intermediate companies, of Prysmian SpA and of a wholly owned subsidiary of that company, Prysmian Cavi e Sistemi Srl (‘PrysmianCS’), formerly Pirelli Cavi e Sistemi Energia SpA, and subsequently Prysmian Cavi e Sistemi Energia Srl. Prysmian and PrysmianCS, two companies established in Italy, together form the Prysmian group, one of the leading businesses worldwide in the submarine and underground power cables sector.

5 While the appellant’s holding in Prysmian was initially 100% of the shares, the level of that holding decreased, following two divestments made on 7 September 2005 and 21 July 2006, initially to 91.1% and then to 84.4% until 3 May 2007, the date on which some of the shares in Prysmian were offered to the public in an initial public offering (‘the IPO’) on the Milan Stock Exchange (Italy).

6 Following a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), the Commission adopted the decision at issue on 2 April 2014.

7 In Article 1 of that decision, the Commission found that the appellant and 25 other undertakings, including Prysmian and PrysmianCS, had participated in a cartel, constituting a single and continuous infringement of Article 101 TFEU and of Article 53 of the EEA Agreement in the sector for (extra) high voltage underground and/or submarine power cables (‘the infringement at issue’).

8 The appellant was held liable for the infringement at issue, in Article 1(5)(c) of the decision at issue, as parent company of Prysmian and Prysmian Cavi e Sistemi Energia during the period from 29 July 2005 to 28 January 2009 (‘the infringement period’).

9 In that regard, the Commission presumed (i) that Prysmian had exercised a decisive influence over the market conduct of Prysmian Cavi e Sistemi Energia during that period and (ii) that the appellant had exercised, between 29 July 2005 and 3 May 2007, a decisive influence over the market conduct of Prysmian and, consequently, of Prysmian Cavi e Sistemi Energia.

10 Moreover, the Commission concluded, on the basis of an analysis of the appellant’s economic, organisational and legal links with those companies, that the appellant had actually exercised a decisive influence over the market conduct of Prysmian and, consequently, of Prysmian Cavi e Sistemi Energia during the infringement period.

11 In those circumstances, as is apparent from Article 2(f) of the decision at issue, the Commission imposed on the appellant a fine of EUR 37 303 000, jointly and severally with Prysmian and PrysmianCS.

12 By application lodged at the Registry of the General Court on 17 June 2014, the appellant brought an action (i) for annulment of the decision at issue in so far as it concerned it and (ii) for the reduction of the amount of the fine which had been imposed on it.

13 In support of its claim for annulment of the decision at issue, the appellant raised five pleas in law before the General Court, including the first plea, alleging infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, and an error of law and a manifest error of assessment.

14 By order of 25 June 2015, the General Court granted Prysmian and PrysmianCS leave to intervene in support of the form of order sought by the Commission.

15 By the judgment under appeal, the General Court dismissed the action in its entirety.

16 The General Court held, in essence, that the Commission was fully entitled to rely, as regards the period from 29 July 2005 to 3 May 2007, on a presumption that the appellant actually exercised decisive influence over the market conduct of Prysmian and Prysmian Cavi e Sistemi Energia.

17 According to the General Court, where a parent company holds all the voting rights associated with its subsidiary’s shares, in particular in combination with a very high majority stake in the share capital of that subsidiary, as in the present case, that parent company is in a similar situation to that of the sole owner of that subsidiary, since that parent company is able to determine the economic and commercial strategy of the subsidiary concerned, even if it does not hold all or virtually all the share capital of that subsidiary.

18 The General Court further held that the Commission had been entitled to consider, without making any error, that the appellant had exercised decisive influence over the market conduct of Prysmian and Prysmian Cavi e Sistemi Energia throughout the entire infringement period, relying, first, on the power held by the appellant to appoint the members of the various boards of directors of Prysmian, secondly, on the appellant’s power to call Prysmian shareholders to meetings and to propose the revocation of directors or of entire boards of directors of Prysmian, thirdly, on the delegated powers of the directors of the Principal Investment Area (‘the PIA’) of the Merchant Banking Division of the appellant on the boards of directors of Prysmian and their participation in Prysmian’s Strategic Committee, fourthly, on the fact that the appellant received regular updates and monthly reports from Prysmian, fifthly, on the measures listed by the Commission in the decision at issue to ensure continuation of decisive control by the appellant after the IPO and, sixthly, on the evidence that the appellant had acted as an industrial owner.

– annul, in whole or in part (for example, from May 2007 or November 2007 onwards, when the appellant and its affiliates held only around 45% and 26% of Prysmian’s shares respectively), Articles 1 to 4 of the decision at issue in so far as they concern the appellant; and/or

– reduce the fine imposed on the appellant under Article 2 of the decision at issue; and

– order the Commission to pay the costs of the proceedings at first instance and on appeal.

– order the appellant to pay the costs, including those relating to their intervention in support of the form of order sought by the Commission.

22 The appellant relies on two grounds in support of its appeal. The first ground of appeal alleges infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, in so far as the appellant was held liable for an infringement of EU competition law committed by Prysmian and PrysmianCS during the period between 29 July 2005 and 3 May 2007 (‘the pre-IPO period’). The second ground of appeal alleges infringement of Article 101 TFEU and Article 23(2) of Regulation No 1/2003, in so far as the appellant was held liable for that infringement for the period from 3 May 2007 to 28 January 2009 (‘the post-IPO period’). The appellant also requests the Court to afford it the benefit of any reduction of the fine granted to Prysmian and to PrysmianCS, by reducing the amount of the fine imposed jointly and severally on it and Prysmian and PrysmianCS, in the event that the Court of Justice upholds the appeal brought by those companies against the judgment of the General Court of 12 July 2018, Prysmian and Prysmian Cavi e Sistemi v Commission (T‑475/14, EU:T:2018:448).

24 By the first part of its first ground of appeal, which relates to paragraphs 49, 50 and 52 of the judgment under appeal, the appellant claims that the General Court was wrong to find that the Commission had not erred in so far as it held the appellant liable for the infringement at issue, in respect of the pre-IPO period, by relying on a presumption that the appellant actually exercised decisive influence over Prysmian and PrysmianCS.

25 In that regard, the appellant submits that its interest in the GSCP V Funds was only approximately 33%, with the balance owned by unaffiliated third party investors. In addition, the holding of those funds in Prysmian’s capital was, during the pre-IPO period, with the exception of the first 41 days, first, approximately 91% and then approximately 84%. It is apparent, however, from the case-law of the Court that the presumption of actual exercise of decisive influence is applicable only where the parent company holds all or virtually all the capital of its subsidiary. The General Court was wrong to find that, where a parent company holds all the voting rights associated with its subsidiary’s shares, in particular in combination with a very high majority stake in the capital of that subsidiary, that parent company is in a situation similar to that of the sole owner of that subsidiary.

26 According to the appellant, the presumption of actual exercise of decisive influence cannot apply in such circumstances, in accordance with the core principle that presumptions must be applied restrictively. In that regard, the General Court’s approach is not consistent with the judgment of 10 September 2009, Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536), in which the Court of Justice recognised the existence of such a presumption. In addition, the General Court’s interpretation is incorrect in the light of the objective of that presumption, since it replaces the easily proved existence of a 100% shareholding by means of a cursory look at the commercial registry, which creates legal certainty and is straightforward to implement in practice, by an extensive demonstration of case-specific factors that supposedly enable the parent company actually to exercise decisive influence. Lastly, the General Court adopted a diametrically opposed interpretation concerning the same subsidiary and the same infringement in its judgment of 12 July 2018, Pirelli & C. v Commission (T‑455/14, not published, EU:T:2018:450).

27 The Commission, supported by Prysmian and PrysmianCS, disputes those arguments. The Commission contends that the appellant’s argument that, since it held only 33% of the capital of the GSCP V Funds, the presumption of actual exercise of decisive influence cannot apply in the present case must be rejected as inadmissible because it was not put forward before the General Court. In any event, that argument is unfounded, given that the appellant solely and fully controlled the decisions regarding the GSCP V Funds’ investments.

28 In its reply, the appellant submits that, before the General Court, it expressly claimed that its beneficial ownership in the GSCP V Funds was insufficient to allow the Commission to rely on the presumption of actual exercise of decisive influence in that regard.

29 As regards, in the first place, the appellant’s argument that the presumption of actual exercise of decisive influence, recognised by the case-law, was not applicable in the present case, given that its interest in the GSCP V Funds was only approximately 33%, the balance being owned by unaffiliated third party investors, it should be recalled that, as the General Court found in paragraphs 48 and 64 of the judgment under appeal, in the decision at issue, the Commission relied on a presumption that the appellant actually exercised a decisive influence over the conduct of Prysmian and, indirectly, of PrysmianCS, by relying not on the level of the appellant’s indirect holding in Prysmian’s capital, but on the finding that the appellant controlled all the voting rights associated with Prysmian’s shares.

30 In its appeal, the appellant does not dispute either that finding of the General Court or that it continued to control 100% of those voting rights, during the entire pre-IPO period, even after the divestments of Prysmian’s shares made on 7 September 2005 and 21 July 2006. Accordingly, the appellant’s argument that its holding in the GSCP V Funds was only approximately 33% must, in any event, be rejected as ineffective.

31 As regards, in the second place, the appellant’s arguments concerning the General Court’s finding that the Commission was entitled to rely on a presumption that the parent company actually exercised decisive influence over the conduct of its subsidiary, it should be recalled that it is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 75 and the case-law cited).

32 It is also settled case-law that, in the particular case in which a parent company holds, directly or indirectly, all or almost all of the capital in a subsidiary which has committed an infringement of the competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise such influence. In those circumstances, it is sufficient for the Commission to prove that the entire capital, or virtually the entire capital, of a subsidiary is held by its parent in order for it to be presumed that the parent exercises decisive influence over the commercial policy of that subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (judgment of 28 October 2020, Pirelli & C. v Commission, C‑611/18 P, not published, EU:C:2020:868, paragraph 68 and the case-law cited).

33 Unless it is rebutted, such a presumption therefore implies that the actual exercise of decisive influence by the parent company over its subsidiary is considered to be established and entitles the Commission to hold the parent company liable for the conduct of the subsidiary without having to produce any additional evidence. The implementation of the presumption of actual exercise of decisive influence is thus not conditional upon the production of additional indicia relating to the actual exercise of influence by the parent company (judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraphs 85 and 86 and the case-law cited).

34 It is true that it is common ground that, during the pre-IPO period, the appellant did not hold all of Prysmian’s capital, since the GSCP V Funds’ holding in Prysmian amounted, as is apparent from paragraph 47 of the judgment under appeal, during that period, and with the exception of the first 41 days, first, to approximately 91% and then to approximately 84%. It is also common ground that, in the decision at issue, the Commission did not consider that that holding meant that the appellant had owned almost all of Prysmian’s capital.

35 It is apparent, however, from the case-law cited in paragraphs 31 to 33 above that it is not the mere holding of all or virtually all the capital of the subsidiary in itself that gives rise to the presumption of the actual exercise of decisive influence, but the degree of control of the parent company over its subsidiary that this holding implies. Consequently, the General Court was entitled, without erring in law, to consider, in essence, in paragraph 50 of the judgment under appeal, that a parent company which holds all the voting rights associated with its subsidiary’s shares is, in that regard, in a similar situation to that of a company holding all or virtually all the capital of the subsidiary, so that the parent company is able to determine the subsidiary’s economic and commercial strategy. A parent company which holds all the voting rights associated with its subsidiary’s shares is able, like a parent company holding all or virtually all the capital of its subsidiary, to exercise decisive influence over the conduct of the subsidiary.

36 It follows that, contrary to what the appellant claims, the General Court did not err in law in finding that, where a parent company holds all the voting rights associated with its subsidiary’s shares, the Commission is entitled to rely on a presumption that the parent company actually exercises decisive influence over its subsidiary’s market conduct.

37 That conclusion is not called into question by the other arguments put forward by the appellant.

38 First, the presumption that decisive influence is exercised over a subsidiary by its parent company is intended, in particular, to strike a balance between, on the one hand, the importance of the objective of combating conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct and, on the other hand, the requirements flowing from certain general principles of European Union law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender and the principle of legal certainty as well as the rights of the defence, including the principle of equality of arms (see, to that effect, judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 108 and the case-law cited).

39 It is true that, as the appellant submits, it may, in some circumstances, prove more difficult to identify the persons who hold the votes associated with the shares in a company than to determine the persons to whom those shares belong. However, there is nothing to indicate that such difficulties may undermine legal certainty. A parent company which, without owning all or virtually all its subsidiary’s shares, has reserved for itself or has acquired all the voting rights associated with those shares clearly cannot be unaware that that is the case.

40 Moreover, it should be borne in mind that the Commission is not in any way bound to rely exclusively on that presumption. There is nothing to prevent the Commission from establishing that a parent company actually exercises decisive influence over its subsidiary by means of other evidence or by a combination of such evidence and that presumption (judgment of 26 October 2017, Global Steel Wire and Others v Commission, C‑457/16 P and C‑459/16 P to C‑461/16 P, not published, EU:C:2017:819, paragraph 88 and the case-law cited).

41 Secondly, not only does the appellant fail to explain how the General Court’s interpretation in the present case contradicts its interpretation in an earlier judgment, but such an argument is ineffective, since the General Court rightly held, as is apparent from paragraphs 31 to 36 of this judgment, that the Commission was entitled to rely on the presumption of actual exercise of decisive influence.

42 It follows that the first part of the first ground of appeal must be rejected as unfounded.

43 By the second part of its first ground of appeal, which concerns paragraphs 71 to 78 of the judgment under appeal, the appellant complains that the General Court wrongly held that it was for the appellant to rebut, as regards the pre-IPO period, the presumption that it actually exercised decisive influence over its subsidiary’s market conduct, given that the General Court could not require it to rebut a presumption which did not apply.

44 Moreover, and in any event, by misinterpreting the legal requirements applicable in the present case, the General Court failed to assess correctly the arguments and evidence adduced by the appellant in order to rebut the presumption of actual exercise of decisive influence.

45 In that regard, the appellant observes, first, that the few items of evidence cited by the General Court are not capable of proving that the GSCP V Funds behaved differently from pure financial investors. Secondly, by rejecting the appellant’s argument that Prysmian’s commercial policy was determined by its management team, on the ground that the appellant had not provided any specific emails or minutes confirming that argument, the General Court imposed on it a probatio diabolica. Thirdly, the General Court was wrong not to attach any importance to the absence of any reference to the GSCP V Funds or to the appellant in Prysmian’s reply to a request for information from the Commission. Fourthly, the General Court held, without justification, that the public declarations of independence and lack of control made at the time by Prysmian’s board of directors had been falsely made in breach of Italian law. Fifthly, the General Court was wrong to reject its argument that the GSCP V Funds had not given instructions to Prysmian on the ground that that argument was presented incoherently.

46 The Commission, supported by Prysmian and PrysmianCS, disputes those arguments. In its view, the appellant’s arguments relating to the examination of the evidence which it submitted in order to rebut the application of the presumption of actual exercise of decisive influence in reality seek to have the Court carry out a fresh appraisal of that evidence and are therefore inadmissible.

47 It should be noted, in the first place, that the appellant’s argument concerning the alleged reversal by the General Court of the burden of proof is based on the premiss that the General Court erred in law in finding that the Commission was entitled to rely, in the present case, on a presumption of actual exercise of decisive influence in order to hold the appellant liable for the infringement at issue as regards the pre-IPO period. Given that, as is apparent from paragraph 36 of this judgment, the judgment under appeal is not vitiated by any error of law in that regard, that argument must be rejected.

48 In the second place, it should be noted that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).

49 However, the jurisdiction of the Court of Justice to review the findings of fact by the General Court extends, inter alia, to the question whether the rules relating to the burden of proof and the taking of evidence have been observed (judgments of 18 January 2017, Toshiba v Commission, C‑623/15 P, not published, EU:C:2017:21, paragraph 39, and of 14 June 2018, Makhlouf v Council, C‑458/17 P, not published, EU:C:2018:441, paragraph 57).

50 Given that, in the present case, the appellant has not alleged any distortion of the facts or evidence by the General Court, the appellant’s arguments concerning the examination of the evidence relied on to rebut the presumption of actual exercise of decisive influence must be rejected as inadmissible.

51 In the third place, in so far as the arguments raised in the context of the second part of the first ground of appeal could be regarded as admissible under the case-law referred to in paragraphs 48 and 49 of this judgment, it should be noted, first, contrary to what the appellant claims, that the General Court did not, in paragraphs 70 and 71 of the judgment under appeal, impose a probatio diabolica on the appellant, but confined itself, in essence, to observing that the burden of proof in order to rebut the presumption at issue lay with the appellant.

52 Secondly, the General Court in no way considered, in paragraphs 73 and 74 of the judgment under appeal, that the public statements of independence made by Prysmian’s board of directors were untrue and contrary to Italian law. The General Court merely found that those statements were in themselves incapable of establishing the veracity of their content and that the exercise of decisive influence had to be assessed on the basis of concrete evidence.

53 Thirdly, although the appellant complains that the General Court wrongly rejected its argument, referred to in paragraph 50 of the application initiating proceedings, that the GSCP V Funds had not given any instructions to Prysmian, it must be observed that the appellant does not explain how the General Court could have understood the scope of that argument contrary to what it stated in paragraph 76 of the judgment under appeal or what material or evidence it failed to examine in that respect, given that it responded to the line of argument to which the appellant referred, in that paragraph of the application, in the context of the second part of the plea in question.

54 It follows that the second part of the first ground of appeal must be rejected as being in part inadmissible and in part unfounded.

55 By the third part of its first ground of appeal, the appellant claims that the General Court erred in law in confirming the conclusion reached by the Commission, in the decision at issue, that the appellant had actually exercised decisive influence over Prysmian during the pre-IPO period.

56 The Commission, Prysmian and PrysmianCS contend that this part is inadmissible on the ground that it requests the Court to carry out a fresh appraisal of the facts and evidence examined at first instance. In any event, they contend that this part is unfounded.

57 It should be borne in mind in that regard that, in the decision at issue, as is apparent from paragraphs 9 and 10 of this judgment, the Commission relied on two grounds in order to hold the appellant liable for the infringement at issue during the pre-IPO period. The Commission relied on a presumption of actual exercise of decisive influence, on the ground that the appellant held all the voting rights associated with Prysmian’s shares. Moreover, it considered that the appellant had actually exercised such influence over Prysmian.

58 As is apparent from the examination of the first part of this ground of appeal, the General Court did not err in law in finding that, in the present case, the Commission was entitled to rely on a presumption of actual exercise of decisive influence in order to establish the appellant’s liability for the infringement at issue in relation to the pre-IPO period. In addition, it is apparent from the examination of the second part of this ground of appeal that the General Court also did not err in law in finding, in the present case, that the appellant had not succeeded in rebutting that presumption.

59 Accordingly, the third part of the first ground of appeal, which concerns the findings of the General Court as regards the second basis on which the Commission relied in order to hold the appellant liable for the infringement at issue in the pre-IPO period, must be rejected as ineffective.

60 The first ground of appeal must, accordingly, be rejected as being in part inadmissible and in part unfounded.

61 The second ground of appeal, which concerns paragraphs 81 to 144 of the judgment under appeal, comprises three parts.

62 By the first part of the second ground of appeal, the appellant submits that the General Court erred in law, first, by relying, in order to confirm the Commission’s finding that the appellant could also be held liable for the post-IPO period, on factors relevant for the pre-IPO period, secondly, by merely asserting that the IPO had not changed anything, and, thirdly, by reversing, in practice, the burden of proof to the appellant’s disadvantage. However, Prysmian’s IPO was a watershed for that company. From 3 May 2007 onwards, the GSCP V Funds held only approximately 46% of Prysmian’s capital and that shareholding amounted to only approximately 26% on 12 November 2007. In addition, as from 3 May 2007, Prysmian had a duty of transparency vis-à-vis the market.

63 The approach adopted by the General Court is also at odds with the guidance provided, in particular, in paragraph 34 of the judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission (C‑155/14 P, EU:C:2016:446), according to which (i) it is for that Court, in order to assess whether a subsidiary decides independently on its conduct on the market or carries out, in all material respects, the instructions given to it by its parent company, to carry out an assessment of the facts which are contemporaneous with the period of the infringement and (ii) evidence relating to another period may be taken into account only on condition that the General Court is able to establish the relevance of those elements to the period concerned and that it does not automatically apply to that period the conclusions stemming from the assessment of those elements.

64 According to the appellant, the General Court misapplied that case-law by referring, in paragraphs 93, 94 and 133 of the judgment under appeal, (i) to the one occasion, which occurred after the period of the infringement, on which the GSCP V Funds revoked the appointment of members of Prysmian’s board of directors and (ii) to the fact that the board of directors appointed prior to the IPO remained unchanged after the IPO, neither of those two factors having any bearing on the alleged actual exercise of decisive influence by the appellant over Prysmian during the post-IPO period. Similarly, the General Court should not have relied, in paragraph 92 of the judgment under appeal, on control over the voting rights or on a majority shareholding at Prysmian’s shareholder meetings, since those circumstances no longer obtained during the post-IPO period. In addition, while accepting that, in order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is able to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised, the General Court based its conclusions on factors which, at most, might show an ability to exercise some influence and validated the conclusions which are based on Prysmian’s one-sided submissions.

65 The Commission contends that the second ground of appeal is inadmissible on the ground that it requests the Court to carry out a fresh appraisal of the facts and evidence examined at first instance. In any event, it contends, that ground of appeal is unfounded.

66 Prysmian and PrysmianCS maintain that the first part of the second ground of appeal is unfounded.

67 As regards the admissibility of the first part of the second ground of appeal, it must be borne in mind that it is settled case-law of the Court that, in examining whether the parent company is able to exercise decisive influence over the market conduct of its subsidiary, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to its parent company and, therefore, account must be taken of the economic reality. Moreover, the actual exercise of decisive influence by a parent company over its subsidiary’s conduct may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such influence (judgment of 18 January 2017, Toshiba v Commission, C‑623/15 P, not published, EU:C:2017:21, paragraphs 46 and 47 and the case-law cited).

68 It is also apparent from the case-law that, as part of that review, it is for the General Court to carry out an assessment of the facts which are contemporaneous with the period of the infringement, but without prejudice to the possibility of relying on elements relating to a prior period, in so far as it is able to establish the relevance of those elements to the period of the infringement and it does not automatically apply to the period of the infringement the conclusions stemming from the assessment of elements prior to that period. (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 34).

69 In so far as, by its arguments in the first part of the second ground of appeal, the appellant complains, in essence, that the General Court relied, during that examination, on matters of no relevance to the period at issue and reversed the burden of proof, those arguments concern points of law which may be raised in the context of an appeal.

70 By contrast, the arguments seeking to call into question the assessment of the evidence carried out by the General Court in the context of that examination are not, in the light of the case-law referred to in paragraphs 48 and 49 above, admissible in the context of an appeal, since the appellant has not alleged any distortion of that evidence by the General Court.

71 As to the substance, it must be stated that, in paragraphs 81 to 144 of the judgment under appeal, the General Court examined whether the appellant had (i) during the pre-IPO period and (ii) during the post-IPO period exercised decisive influence over Prysmian’s market conduct. In that context, it examined in detail the eight elements on which the Commission had relied in that regard. Among the elements relating to the entire infringement period, the General Court examined, inter alia, the power to appoint the members of the various boards of directors of Prysmian and the power to call shareholders to meetings and to propose the revocation of directors or of entire boards of directors.

72 It is in no way apparent from that examination that, in order to ascertain whether the appellant had exercised decisive influence over Prysmian’s market conduct during the post-IPO period, the General Court relied on matters relevant to the pre-IPO period or that it reversed the burden of proof to the appellant’s disadvantage. It is apparent from that examination, and in particular from paragraphs 93, 94 and 133 of the judgment under appeal, that, far from finding that the IPO had not changed anything in that regard, the General Court carefully took into account the elements relied on by the Commission in the decision at issue, drawing a clear distinction between the pre-IPO period and the post-IPO period. Consequently, the appellant’s line of argument, referred to in paragraph 62 of this judgment, is based on a misreading of the judgment under appeal and must therefore be rejected as unfounded.

73 Accordingly, the first part of the second ground of appeal must be rejected as in part inadmissible and in part unfounded.

74 By the second part of its second ground of appeal, the appellant claims that the General Court was wrong to find that the appellant had the required level of representation on Prysmian’s board of directors to influence Prysmian’s market conduct.

75 In the first place, it submits that the General Court’s assertion that the fact that the board continued to have the same composition during the post-IPO period is evidence that the appellant continued to exercise control over that board after the IPO is totally misconceived. That board, appointed at the shareholders’ meeting of 28 February 2007, comprised 10 directors, only 3 of whom were PIA Employee Directors. Since the adoption of a resolution by that board required a simple majority, the PIA Employee Directors sitting on that board were therefore never in a position to actually control the board of directors of Prysmian as a whole. In addition, the General Court misinterpreted the evidence in the file by disregarding the fact that each of the PIA Employee Directors, who were also members of Prysmian’s board of directors, were prohibited from acting, during the post-IPO period, solely or primarily to benefit other parties, including the appellant.

76 In the second place, the appellant maintains that the General Court erred in law in relation to the role of two independent non-executive directors (‘the directors in question’) sitting on Prysmian’s board of directors.

77 In that regard, the appellant claims, first, that, as regards the General Court’s assertion that the appellant had links with at least 50% of the members of Prysmian’s board of directors, in the light of the links with the directors in question, those alleged links, in particular through ‘previous advisory services’ or ‘consultancy agreements’, were not investigated and were not properly described in the judgment under appeal. Nor did the General Court show that those alleged links could or did override the duties of independence owed by the directors in question to all shareholders.

78 According to the appellant, it follows from the case-law that only an accumulation of posts necessarily places the parent company in a position to have a decisive influence on its subsidiary’s market conduct. In the present case, however, the directors in question were not directors, officers or even senior employees of the appellant. Moreover, none of them had any managerial role within the appellant.

79 Furthermore, by holding that the appellant had not succeeded in proving that no links existed in relation to the directors in question, the General Court reversed the burden of proof.

80 Lastly, even if the directors in question were to be taken into account together with the PIA Employee Directors, they collectively represented not a majority of Prysmian’s board, but only 5 out of 10 of the members and therefore half of that board, which meant that they could not pass board resolutions alone.

81 Secondly, the General Court made an error of law, amounting to a distortion of the evidence in question, when rejecting the probative value of the declarations made by Prysmian’s board of directors confirming the independence of its independent members, thereby reversing the burden of proof once again. After the IPO, Prysmian was required to appoint a mandatory number of independent directors as board members. In that regard, the appellant submits that any form of kinship or professional relationship between a director and the company, including other group companies or significant shareholders, was precluded. Prysmian’s board formally confirmed, on numerous occasions, that the independent directors were truly independent. If Prysmian had had any doubt as to the accuracy of such confirmations, it would have run the risk, by making them, of civil, administrative and, potentially, criminal penalties as a matter of Italian law.

82 In the third place, the General Court failed to appraise the evidence in the judgment under appeal consistently, by concluding (i) in paragraph 108 of the judgment under appeal, that the mere fact that Prysmian’s board of directors evaluated some of its directors as independent is not capable of proving the absence of links with the appellant and, therefore, the real independence of those directors and (ii) in paragraph 136 of that judgment, that, given that the minutes concerned were of a meeting of that board reproducing comments by participants, it was for the appellant to submit evidence proving the contrary.

83 By the third part of its second ground of appeal, the appellant claims that none of the other factors relied on by the General Court is sufficient, either alone or in conjunction with other elements, to demonstrate that the appellant actually exercised decisive influence over Prysmian during the post-IPO period.

84 In the first place, the power held by the GSCP V Funds to appoint the members of Prysmian’s board of directors and the power held by those funds to call shareholders to meetings and to propose the revocation of directors or of the entire board of directors do not demonstrate that the appellant was in a position, through those funds, to exercise decisive influence over Prysmian. As regards appointment rights, the case-law of the General Court requires it to be demonstrated that board members thus appointed have the power to impose actual control on the board as a whole.

85 In the second place, as regards the powers delegated to the PIA Employee Directors before the IPO, their appointment to Prysmian’s Strategic Committee after the IPO, the receipt of regular updates and of monthly reports and the other measures adopted following the IPO which are referred to in paragraph 130 of the judgment under appeal, none of them, alone or in combination, constitutes evidence of actual exercise of decisive influence over Prysmian.

86 In the third place, the General Court’s finding, in paragraphs 140 to 142 of the judgment under appeal, that the appellant adopted behaviour typical of an industrial owner towards Prysmian is incorrect. Furthermore, the General Court committed a manifest error of law by disregarding the case-law according to which liability for infringements of competition law does not attach to a pure financial investor such as the appellant.

87 The Commission contends that the second and third parts of the second ground of appeal are inadmissible for the reasons already set out in paragraph 65 of this judgment. The second part is, moreover, ineffective. In the alternative, the Commission contends that those two parts are unfounded.

88 Prysmian and PrysmianCS contend that those two parts are inadmissible or, in the alternative, unfounded.

89 First, in so far as the appellant complains that the General Court did not respond to its arguments concerning the existence and relevance of links between the appellant and the members of Prysmian’s board of directors, it must be observed that, by relying on and referring, in paragraph 106 of the judgment under appeal, to recitals 761 and 762 of the decision at issue and to their respective footnotes, the General Court sufficiently identified the links at issue. In addition, it is apparent from paragraphs 106 to 108 of that judgment that the General Court considered that, in the present case, those links were such that they could be regarded as constituting one of the elements on which the Commission could rely in order to demonstrate that the appellant had exercised decisive influence over Prysmian’s conduct.

90 It should be borne in mind, in that regard, that it is apparent from the case-law cited in paragraph 67 above that the actual exercise of decisive influence by a parent company over its subsidiary’s conduct may be inferred from a body of consistent evidence, even if some of that evidence, taken in isolation, is insufficient to establish the existence of such influence.

91 Secondly, as regards the alleged inconsistent assessment of the evidence by the General Court, it should be observed that the appellant’s arguments relate to paragraphs 108 and 136 of the judgment under appeal. In paragraph 108 of that judgment, the General Court held that the mere fact that that board of directors had evaluated some of its directors as independent, or that it published such an evaluation in its corporate governance reports, as the appellant claims, is not, in itself, capable of calling into question the Commission’s finding that those directors did not in fact cease to have links with the appellant. Thus, the General Court stated, in essence, that the board’s evaluations could be contradicted by the Commission’s findings. That assessment is in no way inconsistent with the consideration, set out in paragraph 136 of the judgment under appeal, concerning a remark described in formal minutes of Prysmian’s board meeting, according to which such a document was supposed to reproduce the comments that the participants in that board meeting had wished to have placed on record.

92 Thirdly, as regards the alleged reversal of the burden of proof, so far as concerns the role of the directors in question, it is sufficient to note that the appellant’s line of argument is based on a misreading of the judgment under appeal. In paragraph 106 of that judgment, the General Court, after assessing the evidence relied on by the Commission and concluding that the personal links substantiated by that evidence constituted a relevant factor in the examination of whether the appellant exercised actual control over Prysmian, confined itself, in essence, to finding that the appellant had not succeeded in calling that conclusion into question.

93 Fourthly, as regards the appellant’s argument that it follows from the case-law that only an accumulation of posts necessarily place the parent company in a position to have a decisive influence on its subsidiary’s market conduct and that such a situation is lacking in the present case, it should be borne in mind that it is apparent from the case-law, as the General Court observed, in paragraph 107 of the judgment under appeal, that the existence of an economic entity formed by the parent company and its subsidiary may be based not only on the formal relationship between the two, but also on informal relationships, consisting inter alia in personal links between the legal entities comprising such an economic unit (see, to that effect, judgment of 11 July 2013, Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 68).

94 However, it does not follow from the Court’s case-law that personal links between two companies could be relevant in that regard only in the event of an accumulation of posts. The relevance of such personal links lies in the fact that they may suggest that a person, although active for a given company, actually pursues, in view of his or her links with another company, the interests of the latter. That may also be the case where a person who sits on the board of directors of a company is connected to another company by means of ‘previous advisory services’ or ‘consultancy agreements’, as the General Court noted in paragraph 106 of the judgment under appeal.

95 It follows that the General Court did not err in law in holding that such personal links may, in principle, be relevant for the purpose of establishing whether a parent company is able to exercise decisive influence over the market conduct of its subsidiary.

96 Fifthly, as regards the other arguments relied on by the appellant in the context of the second and third parts of the second ground of appeal, it is apparent that, by all of those arguments, the appellant in actual fact merely calls into question the findings of fact made by the General Court in its analysis of the relevant evidence in the present case and thus seeks to have the Court of Justice substitute its own assessment for that of the General Court.

97 As was observed in paragraphs 48 and 49 of this judgment, the General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence and the appraisal of those facts and that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

98 The Court of Justice has also stated that, where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his or her view, led to that distortion (judgment of 28 November 2019, Brugg Kabel and Kabelwerke Brugg v Commission, C‑591/18 P, not published, EU:C:2019:1026, paragraph 63 and the case-law cited).

99 It is true that the appellant claims that the General Court distorted the meaning of the statements made by Prysmian’s board of directors confirming that the independent directors on that board were truly independent. However, the appellant has failed to show how the General Court distorted the evidence in question.

100 It should be borne in mind that, in that regard, the General Court held, in paragraph 108 of the judgment under appeal, that the mere fact that that board of directors evaluated some of its directors as independent, or that it published such an evaluation in its corporate governance reports, is not, in itself, capable of calling into question the Commission’s finding that those directors did not in fact cease to have links with the appellant.

101 Given that, consequently, the appellant has not established any distortion of the facts or evidence, its arguments seeking to call into question the General Court’s assessment of those facts and that evidence must be rejected as inadmissible.

102 The second ground of appeal must therefore be rejected as in part inadmissible and in part unfounded.

103 As regards the appellant’s request that the Court afford it the benefit of any reduction of the fine granted to Prysmian and to PrysmianCS, by reducing the amount of the fine imposed jointly and severally on it and Prysmian and PrysmianCS, in the event that the Court upholds the appeal brought by those companies against the judgment of the General Court of 12 July 2018, Prysmian and Prysmian Cavi e Sistemi v Commission (T‑475/14, EU:T:2018:448), it is sufficient to note that the Court of Justice dismissed that appeal by the judgment of 24 September 2020, Prysmian and Prysmian Cavi e Sistemi v Commission (C‑601/18 P, EU:C:2020:751).

104 Consequently, since none of the grounds relied on by the appellant in support of its appeal can be upheld, the appeal must be dismissed in its entirety.

105 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

106 Since the appellant has been unsuccessful and the Commission has applied for an order for costs, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.

107 Under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he or she may not be ordered to pay costs in the appeal proceedings unless he or she participated in the written or oral part of the proceedings before the Court. Where an intervener at first instance takes part in the proceedings, the Court may decide that he or she shall bear his or her own costs.

108 Since Prysmian and PrysmianCS participated in the proceedings before the Court, it must be held, in the circumstances of the present case, that they must bear their own costs.

2. Orders The Goldman Sachs Group Inc. to bear its own costs and to pay those incurred by the European Commission;

3. Orders Prysmian SpA and Prysmian Cavi e Sistemi Srl to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> The Goldman Sachs Group v Commission (Appeal - Agreements, decisions and concerted practices - European market for power cables - Judgment) [2021] EUECJ C-595/18P (27 January 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C59518P.html Cite as: EU:C:2021:73, ECLI:EU:C:2021:73, [2021] EUECJ C-595/18P, [2021] 4 CMLR 16

Court of Justice of the European Communities (including Court of First Instance Decisions)