Next, it is not established that Mr T., who represented the applicant, and Mr H. who represented FLS Plast, knew, or ought to have known, that the subsidiary that had recently been acquired was involved in anti-competitive conduct. Finally and above all, the Court notes that the Commission does not dispute that the day-to-day management of the subsidiary was among the responsibilities of the subsidiary’s managing director. The applicant has explained that Mr L., a representative of the Saint-Gobain group, had retained the post of managing director throughout 1991.
En realidad, parece haber pesado en la Sentencia el hecho de que el 40 % restante seguía en manos de otro grupo empresarial - Saint-Gobain - que había designado al consejero-delegado de la filial y que, durante el tiempo que siguió en el capital de la filial, tendría atribuida la gestión. Aunque este argumento es atendible, no elimina la contradicción jurisprudencial.
In that connection, it is clear from the case-law that the factors capable of revealing the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the ‘ordinary’ members of the cartel and likewise its late entry on the market where the infringement occurred, regardless of the duration of its participation in the infringement, and also the existence of express statements to that effect made by representatives of other undertakings which participated in the infringement