On 15 July 2015, the General Court ("GC") significantly reduced the fine imposed on voestalpine AG and voestalpine Wire Rod Austria GmbH ("voestalpine") from EUR 22 million to EUR 7.5 million for their involvement in an infringement on the market for pre-stressing steel (T-418/10). In essence, the judgment finds that the Commission failed to establish voestalpine's involvement in the infringement outside of Italy. The GC, however, upheld the Commission decision insofar as voestalpine was held liable for its agent's unlawful behaviour while acting within the geographical scope of its agency agreement.
In its amended decision of 4 April 2011, the Commission fined 17 pre-stressing steel producers approximately EUR 270 million for their alleged involvement in a pan-European cartel that lasted nearly two decades (between 1984 and 2002). According to the decision, the companies fixed prices and quotas, allocated clients and exchanged commercially sensitive information in breach of Article 101 TFEU.
voestalpine appealed the Commission decision by arguing, in particular, that in the absence of any direct evidence of its involvement, it should not be held liable for its Italian agent's participation in the infringement. Furthermore, voestalpine argued that it could not be held liable for the agent's behaviour as the agent also represented its competitor CB Trafilati Acciai SpA at the alleged cartel meetings.
The GC dismissed this plea by holding that even where no formal parent/subsidiary relationship exists, agents or other undertakings may still fall under the definition of a "single economic unit" for the purposes of establishing liability under Article 101 TFEU. This was held to be the case with respect to voestalpine's agent because (i) voestalpine carried most of the economic risk associated with its Italian agent's activities, and (ii) the agent was not able to operate independently from its principal. The fact that the agent also represented another participant in the alleged infringement does not lead to a different conclusion, as an agent can form one economic unit with two principals at the same time.
Interestingly, the GC annulled the Commission decision insofar as it fined voestalpine for its agent's participation in cartel meetings outside of Italy. voestalpine successfully argued that the geographic scope of its agency agreement was limited to sales within Italy, and therefore its liability could not extend beyond the scope of its agent's mandate. Consequently, the GC reduced the amount of the fine imposed on voestalpine by EUR 14.5 million.
The judgment makes it clear that companies may be held responsible for the behaviour of their agents, even in the absence of knowledge of their agent's anticompetitive behaviour.