COMPETITION • FRENCH LAW • PROCEDURE
In the case of a group of companies, the anticompetitive agreement can be attributed only to the parent company if the subsidiary has no autonomy in terms of determining its commercial policy and is unable to meet its contractual obligations. In line with EU law, the Competition Authority has imported into domestic law the presumption of imputability to the parent company of the offending conduct of a subsidiary that results from its holding of 100% or almost 100% of the subsidiary’s capital. The presumption applies even when the Authority applies only French law or when the entity in question carries out missions of general interest, provided that, through one of its subsidiaries, it carries out an economic activity that is subject to competition. The Competition Authority does not have to back up the presumption of liability where the undertaking holds a 100% stake of a subsidiary with other evidence or prove the direct participation of the parent in the infringement. The fact that the parent company is not involved in the decisions of its wholly-owned subsidiary is not sufficient to overturn the presumption of imputability, which is not based on instigation by the former, but on the existence of a single undertaking. The adoption of formal decisions by corporate bodies is not necessary to establish the existence of an economic unit between the infringer and its umbrella company, since this may arise from personal links between these legal entities, such as the fact that the subsidiary does not have its own legal department but relies on that of the holding company. On the other hand, the parent company rebuts the presumption when it establishes that it acquired the subsidiary only for its activities in sectors not concerned by the infringement and intended, from the outset, to divest the other activities rapidly.
