Judgment of the Court of 27 January 2021, The Goldman Sachs Group v Commission, C-595/18 P
| Date | 27 January 2021 |
| Year | 2021 |
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If that should prove to be the case, the Court finds that it is for the referring court to interpret the
national legislation at issue so far as at all possible in the light of EU law, and particularly the rules of
EU competition law, as interpreted by the Court, or, as necessary, disapplying that legislation.
In that regard, the Court notes that the question whether a national provision must be disapplied, in
so far as it conflicts with EU law, arises only if no interpretation of that provision in conformity with EU
law proves possible.
However, in the present case, it is apparent from the order for reference that such an interpretation
appears possible, which it is, however, for the referring court ultimately to ascertain.
Judgment of the Court (Second Chamber) of 27 January 2021
The Goldman Sachs Group v Commission
Appeal – Competition – Agreements, decisions and concerted practices – European market for power
cables – Market allo cation 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
The Goldman Sachs Group (‘the appellant’) is a company established in the United States. It is an
investment bank which operates in all the major financial centres around the world. From 29 July
2005 to 28 January 2009 (‘the infringement period’), it was the (indirect) parent company, through
certain funds which it had established, of Prysmian SpA and its wholly owned subsidiary, Prysmian
Cavi e Sistemi Srl, two companies established in Italy, which together form the Prysmian group, one of
the leading businesses worldwide in the submarine and underground power cables sector. While its
shareholding in Prysmian was initially 100% of the shares, it subsequently decreased to 84.4% when
part of Prysmian’s capital was floated on the stock exchange on 3 May 2007.
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Following an investigation initiated in 2008, the Commis sion, by decision of 2 April 2014
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(‘the
decision at issue’), (i) found that there had been a single and continuous infringement of Article 101
TFEU in the ‘sector for (extra) high voltage underground and/or submarine power cables’ consisting in
an allocation of the worldwide market between the main European, Japanese and South Korean
producers concerned and (ii) imposed fines for their participation in the cartel at issue.
The appellant was found liable as Prysmian’s parent company during the infringement period, and a
distinction was drawn between the situation that prevailed until a part of Prysmian’s capital was
floated on the stock exchange and the subsequent situation. Thus, as regards the first period, the
Commission found that the appellant had remained in a situation similar to that of a sole and
exclusive owner, despite the divestments of shares, so that it could be presumed, in accordance with
the case-law principles established by the Court of Justice,
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that it had exercised decisive influence
over Prysmian’s market conduct. Furthermore, as regards the entire infringement period, the
Commission relied on a body of evidence revealing the economic, organisational and legal links
between the appellant and Prysmian in order to conclude that such decisive influence had actually
been exercised.
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During the infringement pe riod, the period prior to the floatation on the stock exchange of part of Prysmian’s capital will b e referred to
below as ‘the first period’.
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Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceedin g under Article 101 [TFEU] and Article 53 of the EEA
Agreement (Case AT.39610 – Power cables).
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Judgment of 10 September 2009, Akzo Nobel and Others v Commission (C-97/08 P, EU:C:2009:536, paragraph 58). See also judgments 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), and 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).
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