Four wholly-owned subsidiaries of the parent company Akzo Nobel NV were fined €20.99 million in 2004 for its part in a cartel in the market for choline chloride and, although the parent company itself had not participated in the cartel, it was fined jointly and severally with its subsidiaries as they were all considered part of the same economic unit. An appeal lodged against the decision by Akzo Nobel NV and the four subsidiaries was rejected by the Court of First Instance (CFI) and it is against that judgment, in relation to the liability of the parent company, that they are now appealing in the European Court of Justice (ECJ).
The parties essentially agree that a parent company can be called to account for the cartel offences of its subsidiaries if it exercises a decisive influence over them. However, there is dispute as to whether such exertion of influence may be presumed where a parent company owns 100% of the shares in its subsidiaries or whether there must also be clear indications that the parent company exerts influence over the commercial behaviour of its subsidiaries. In particular, Akzo Nobel refer to the Bolloré judgment by the CFI in 2007 in which it was held that the 100% shareholding in a subsidiary was not in itself sufficient to attribute liability to the parent for the conduct of its subsidiary and that something more than the extent of the shareholding must be shown. Advocate General Kokott at the ECJ has given an opinion in advance of the case being heard before the court, recommending that Bolloré is not followed by the ECJ and that therefore Akzo Nobel's arguments are not accepted and their appeal is dismissed.