El otro blog para cosas más serias

El otro blog para cosas más serias
El otro blog para cosas más serias

miércoles, 25 de agosto de 2010

Una empresa es una empresa salvo que sea una empresa pública

Del último número de Competition Policy Newsletter

Possible coordination risks due to shareholdings by the French State in both GDF Suez (Electrabel) and EDF

As for the analysis of the competitive assessment of the transaction, the Belgian NCA submitted in its referral request that there was a risk of coordination between EDF and GDF SUEZ when taking their strategic business decisions resulting from their common shareholder, the French State, and the common management through the French Government’s shareholding agency (“Agence des Participations de l’Etat” or “APE”).
(Debe aclararse que Francia tiene más del 70 % del capital de EDF y algo menos de la mitad de GDF-Suez)
The Commission took the view that when an undertaking establishes its own business plan, budget and strategy, in its own commercial interests and in an independent manner, it can be considered as having an independent power of decision in relation to other undertakings where the same State is the main or a major shareholder.
To assess whether the undertaking has such independent power of decision, two aspects were analysed: (i) the existence of interlocking directorships between the undertakings owned by the same acquiring entity; and (ii) the existence of adequate safeguards ensuring that commercially sensitive information is not shared between such undertakings. As regards the first aspect, none of the representatives of the French State appointed to the Board of Directors of EDF is also a member of the Board of Directors of GDF Suez (Electrabel), and vice versa. As regards the second aspect, it was confirmed that the members of the Board are bound by governance rules relating to confidentiality and independence in accordance with the corporate governance principles applicable to listed companies. The information provided by EDF indicated that EDF is able to establish its business plans independently of GDF Suez (Electrabel) and in accordance with its own commercial interests. During the market investigation the Commission did not receive any evidence to the contrary. The fact that a governmental agency (APE) is responsible for managing the French State’s shareholdings in EDF and GDF Suez (Electrabel) did not call this conclusion into question. Its role is clearly limited and it does not affect the commercial and business autonomy of these companies. The commercial independence of EDF is demonstrated by its plans to expand its business in Belgium, in particular by preparing the construction of significant new CCGT generation capacity. These expansion plans, through their impact on Belgian’s electricity wholesale prices, would be more likely to have a negative effect on the revenues of GDF Suez (Electrabel) than on any other market participant in the Belgian electricity wholesale market. EDF’s expansion plans thus refute the assertion that the French State is exerting its influence on EDF and GDF SUEZ with a view to increasing the profits of both groups. Consequently, since EDF can be regarded as a company with its own powers of decision independent of GDF Suez (Electrabel), and is actually a competitor of GDF Suez (Electrabel), the alleged risk of coordination with GDF Suez (Electrabel) in the Belgian electricity markets due to the companies having the same major shareholder was considered unfounded.

Y, un poco antes, en la misma publicación en relación con la responsabilidad de la matriz por las infracciones del derecho de la competencia de la filial

The first issue on which clarity has been provided (en la Sentencia del TJ) concerns the question of the elements the Commission must show to create a rebuttable presumption of liability of the parent company. In the Statement of Objections the Commission had only indicated that Akzo Nobel NV directly or indirectly controlled the entire capital of the subsidiaries in question. Against the background of earlier case law, which had sometimes mentioned other elements of influence by the parent company as well, the Court has now clarified that it suffices for the Commission to demonstrate 100 % ownership to create the rebuttable presumption that the parent company exercised decisive influence over the commercial policy of the subsidiary and that the parent company can therefore be held jointly and severally liable together with the subsidiary that was directly involved in the anticompetitive behaviour. Nothing more than the 100 % shareholding needs to be shown.
A second and perhaps even more important issue on which the Court has thrown light is the question what the parent company or the subsidiary must show to rebut the presumption of liability of the parent company or alternatively, in cases where there is no such presumption because the parent company’s shareholding in the subsidiary is too low, what the Commission has to show to hold the parent company liable. It is in particular on this question that conflicting approaches have been advocated in the past, based on a long history of case law that has not always been clear and consistent. To simplify the debate, parent companies often saw the relevant question as being under what circum stances they could be held liable for the illegal actions of their subsidiaries. The Commission, on the other hand, has, especially in the decisions it has adopted in recent years, taken the view, based on the clear wording of Article 81 of the Treaty, that the infringement is committed by the undertaking, not just by the subsidiary which directly participated in the offensive behaviour. It is, therefore, in the view of the Commission, not a question of one legal person being responsible for the behaviour of another legal person, but of an economic unit being responsible for its own behaviour. This difference in the starting point of the legal reasoning has important consequences for the question what exactly must be shown to hold parent companies (not) liable. Traditionally, parent companies, usually citing older case law, would argue that the parent company is only liable for the illegal actions of its subsidiary when the subsidiary does not decide independently upon its own conduct on the market but carries out, in all material respects, the instructions given to it by the parent company. Parent companies would only be liable when they had the power to direct the conduct of the subsidiary to the point of depriving it of any real independence in determining its own course of action on the market or, as sometimes said, its own commercial policy.
The Commission’s starting point that it is the ‘undertaking’ that commits the infringement leads to a different kind of assessment. From this perspective, it is necessary first to determine what the undertaking consists of, i.e. to identify whether the subsidiary that is involved in anticompetitive behaviour is an autonomous economic actor or whether it is part of a larger economic actor. Then, in a second step, those legal persons should be identified within the undertakings that are to be held responsible for the infringement and should be the addressees of a Decision. These are normally at least the subsidiaries that were themselves directly involved in the anticompetitive behaviour and the legal entity that was directing the undertaking as a whole at the time of the infringement. In identifying the undertaking, it is obvious that attention must be paid to all legal, economic and organisational aspects of relations between the subsidiary and the parent company and not just to the much narrower question of whether the subsidiary received particular instructions from the parent company as to its behaviour on the market.
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