On April 15, 2021, the Court of Justice confirmed the General Court judgment upholding the Commission’s 2015 decision in the retail food packaging cartel which found Italmobiliare jointly and severally liable for the participation of its subsidiary Sirap-Gema.
On June 24, 2015, the Commission fined eight manufacturers and two distributors of retail food packaging trays a total of €115.8 million for participating in at least one of five separate price- fixing cartels which took place in the EEA between 2002 and 2008.
The investigation, including inspections at the participants’ premises, was initiated following information provided by Linpac, another cartel member who was granted full immunity under the Commission’s 2006 Leniency Notice. Sirap- Gema, indirect subsidiary of Italmobiliare, was the second undertaking—or for the cartels in the Italian and French markets—the third to provide the Commission with additional information on the cartels, and therefore did not receive full immunity.
Relying on the Akzo Nobel parental liability doctrine (according to which, a parent company holding all or almost all of a subsidiary’s capital is presumed to have exercised decisive influence over the conduct of the subsidiary), the Commission found the investment company Italmobiliare jointly and severally liable for fines totaling €35.9 million imposed on [its subsidiary Sirap-Gema, in which it held a 100% shareholding, for participation in three of the cartels.
Italmobiliare and Sirap-Gema appealed the Commission decision to the General Court, as did most of the other addressees. On appeal, the General Court dismissed Italmobiliare’s appeal and upheld the Commission’s decision in its entirety.
Italmobiliare appealed the General Court’s judgment in October 2019. In its judgment of April 15, 2021, the Court of Justice also dismissed Italmobiliare’s appeal in its entirety.
Pure financial investors cannot escape presumption of decisive influence with a 100% shareholding
On parental liability, the Court of Justice confirmed that Italmobiliare, regardless of it being a financial investor, was rightly presumed to have exercised decisive influence over the conduct of its subsidiaries, because of its 100% shareholding in Sirap-Gema during the period of the infringement.
The Court of Justice therefore confirmed its approach in Pirelli and Goldman Sachs that, absent robust evidence that they did not exercise decisive influence, financial investors are also jointly responsible for wrongdoings of companies in which they hold all (or almost all) shares, or as in the case of Goldman Sachs, merely a lower level of shareholding, as long as the financial investor retains all voting rights associated with that company’s shares.
The judgment in Italmobiliare follows the trend of Pirelli and Goldman Sachs and strengthens the Commission’s ability to rely on the presumption of decisive influence in cartel cases where the parent company is a (conglomerate) holding company. Despite the Court’s statements of principle, Italmobiliare adds to the impression of de facto irrefutability of the presumption.
No infringement of fundamental rights as long as the presumption remains rebuttable
The Court of Justice equally dismissed Italmobiliare’s arguments on the infringement of fundamental rights such as the principle of personal liability and the presumption of innocence.
In this regard, the Court recalled its established case law that the presumption of decisive influence is rebuttable, and therefore does not infringe these fundamental rights. In light of the quasi- insurmountable hurdle to rebut the presumption, the Court’s reiteration that it is precisely to honor the general principles of EU law that the presumption is rebuttable, is questionable. As if conscious of the general criticism, the Court of Justice added, based inter alia on Pirelli, that the fact that a rebuttal remains difficult does not make the presumption de facto irrefutable.
Italmobiliare also argued that the application of the presumption of decisive influence to a financial holding company amounted to unequal treatment of different property ownership systems in breach of Article 14 ECHR, Article 17 of the European Charter of Fundamental Rights, and the principle of neutrality in respect of the property ownership system enshrined in Article 345 TFEU. And indeed, pure financial investors see themselves exposed to the—still unrebutted—presumption of liability for wrongdoings of their subsidiaries for the mere fact of owning all or almost all of the cartelist’s voting rights. On the other hand, a minority shareholder in a listed company with fragmented shareholding, despite exercising de facto control, is not subject to the same presumption, thus increasing its chances of successfully contesting the Commission’s findings on parental liability.
 Italmobiliare and Others v. Commission (Case C-694/19 P) EU:C:2021:286.
 Italmobiliare and Others v. Commission (Case T-523/15) EU:T:2019:499.
 See Akzo Nobel NV and others v. Commission (Case C-97/08 P) EU:C:2009:536, para. 60.
 The Goldman Sachs Group, Inc. v. Commission (Case C-595/18 P) EU:C:2021:73, as reported in our January 2021 EU Competition Law Newsletter. Italmobiliare’s argument, based on the part of the Goldman Sachs judgment referring to a period of the infringement during which Goldman Sachs only had 31% shareholding of the cartelist, and for which Goldman Sachs had escaped the presumption of decisive influence, was not considered relevant precisely because of the different shareholding levels (amounting to 100% for Italmobiliare).