Cartels: extension of the presumption of decisive influence

For the first time, the CJEU extends the presumption of decisive influence to cases where a parent company holds 100% of the voting rights associated with the shares of its subsidiary, even if it does not hold all or almost all of the latter’s share capital.

The CJEU considers, in accordance with established case law, that it is not the mere holding of all or almost all of the capital of the subsidiary itself that gives rise to a presumption of the effective exercise of decisive influence, but the degree of control that the parent company exercises over its subsidiary.

CJEU 27 Jan. 2021, The Goldman Sachs Group v. Commission, aff. C-595/18 P, extract (…) It also follows from settled case law that, in the particular case where a parent company holds directly or indirectly all or almost all of the capital of its subsidiary which has committed an infringement of the competition rules, on the one hand, that parent company may exercise decisive influence over the conduct of that subsidiary and, on the other hand, there is a rebuttable presumption that the parent company actually exercises such influence. In those circumstances, it is sufficient for the Commission to prove that all or almost all of the capital of a subsidiary is held by its parent company for it to be presumed that the latter effectively exercises a decisive influence on the commercial policy of that subsidiary (…) For those reasons, the Court (Second Chamber) declares and rules: 1) Dismisses the appeal (…)