Brussels, 30/09/2011 (Agence Europe) - On Thursday 29 September, the European Court of Justice cancelled the fine imposed by the Commission on Elf Aquitaine (cases C-520/09 P and C-521/09P) in 2005. The fine was imposed on the latter for its participation, together with its subsidiary Arkema, in a cartel in the monochloroacetic acid market. It considers that the Commission had not responded sufficiently to arguments from Elf Aquitaine claiming that Arkema had acted autonomously. On the other hand it rejected the arguments from Arkema and maintained the fine on the company.
The two companies received a fine of €45 million jointly and severally on 19 January 2005 (with an increase of €13.5 million for Arkema's repeated infringements, at the time going under the name of Atofina SA) for agreements with three other companies to maintain their share in the monochloroacetic acid market (EUROPE 8870). Two different appeals were lodged demanding that this decision be overruled but in both cases the General Court rejected their arguments on 30 September 2009. It held that where all or nearly all of the share capital of the 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 burden is on the parent company to produce adequate evidence to show that its subsidiary acts independently on the market. The General Court held, inter alia, that the Commission was correct in considering the joint and several liabilities for the infringements committed by Arkema should be attributed to Elf Aquitaine.
The Court considers, on the other hand, that the Commission should have provided a more circumstantiated explanation why the arguments put forward by Elf Aquitaine were not sufficient to overturn its presumption with regard to the exercising of decisive influence on its subsidiary and that it was up to the General Court to verify these reasons. According to the Court, the Commission only provided a series of assertions and repeated denials, without any circumstantiated explanation, which did not enable Elf Aquitaine to find out the reasons for the decision and the General Court exercising its control. The Court therefore overrules this judgement, as well as a decision affecting Elf Aquitaine. On the other hand, they rejected the appeal for the fine on Arkema to be quashed and considered that the Commission had not violated the principle of proportionality when it calculated the fines on the company. (FG/transl.fl)