Toshiba v Commission: Parental Liability of a Minority Shareholder

摘要

The General Court annulled the fine imposed individually on Toshiba but confirmed the attribution of liability to the minority shareholder. On 5 December 2012, the Commission fined seven international groups of companies for participating in either one or both of two distinct cartels in the sector of cathode ray tubes ('CRT'). According to the Commission, between 1996 and 2006, a number of companies fixed prices, shared markets, allocated customers, and restricted output. One cartel concerned colour picture tubes used for televisions (the CPT cartel) and the other one colour display tubes used in computer monitors (the CDT cartel). The Commission found that both infringements covered the entire European Economic Area (EEA). In September 2015, the General Court issued judgments on the appeals brought against the CRT decision, touching upon, among others, issues the parental liability of minority shareholders (Case T-104/ 13 Toshiba Corp. v Commission). It confirmed that Toshiba was liable for the participation of Matsushita Toshiba Picture Display Co. Ltd (MTPD) in the cartel despite Toshiba holding only a minority share of 35.5 per cent in MTPD. The General Court considered that Toshiba and MTPD formed part of the same undertaking for the purpose of Article 101 TFEU as Toshiba had rights over the joint venture which went beyond the normal rights provided to minority shareholders to protect their financial investment. Through these rights (eg a veto right in strategic and investment questions and concerning development plans or rights concerning the appointment of senior management), Toshiba was capable to exercise decisive influence over the joint venture.