On 17 September 2015, the Court of Justice rendered two judgments in appeals brought by Total SA and its subsidiary Total Marketing Services SA ("Total Marketing") against fines imposed in the candle wax cartel.
In the judgment concerning Total SA, the Court of Justice confirmed and further clarified the principles laid down in Tomkins and ruled that the fine imposed on a parent company had to be brought in line with the fine imposed on its subsidiary. The appeal by Total Marketing was dismissed in its entirety. However, in this judgment, the Court of Justice corrected the General Court ("GC") and ruled that publicly distancing itself from a cartel is an important, but not the only factor in assessing whether an undertaking has ceased participating in a cartel.
In its decision of 1 October 2008, the European Commission jointly and severally fined Total SA and its subsidiary Total Marketing for EUR 128 million. Total SA was held liable purely as (indirect) 100% parent company of Total Marketing. Both companies brought parallel appeals before the GC, resulting in a reduction of the fine on the subsidiary to EUR 125 million on account of a misapplication of the fining guidelines. However, the GC did not reduce the fine imposed on Total SA to the same extent.
As regards Total SA, the Court of Justice found that the GC erred in law in not having regard to the outcome of the judgment relating to the subsidiary. The judgment confirms that the liability of a parent company cannot exceed that of its subsidiary when its "liability is purely derivative of that of its subsidiary" and "no other factor individually reflects the conduct for which the parent company is held liable". The application of these principles by the European Courts requires that certain procedural requirements are satisfied, inter alia the bringing of parallel appeals by the subsidiary and its parent company having the same object. As these requirements were met in the present case, the Court of Justice ruled that Total SA "must, in principle, benefit from any reduction in the liability of its subsidiary which had been imputed to it" and reduced the fine of Total SA accordingly.
In a parallel appeal, Total Marketing disputed its involvement in the cartel during certain periods. Although the Court of Justice dismissed this appeal in its entirety, it did find that the GC erred in law in so far as it held that an undertaking can only prove that it has ceased participating in a cartel by publicly distancing itself from the cartel. In fact, although publicly distancing itself is an important factor, there are other means of showing that an undertaking has ceased its involvement in a cartel. However, since the GC also established Total Marketing's participation on the basis of other factors, the Court of Justice upheld the fine imposed.