Judgment_paragraph 105 · Toshiba Corp. v European Commission (T-104/13)

105As a preliminary point, it should be observed that, in view of the fact that the first and second pleas of the action have been upheld, the Commission cannot succeed in claiming that the applicant was aware of the existence of the CPT cartel, having regard to its direct involvement before the creation of MTPD, and, consequently, of MTPD’s subsequent participation. It is important to note that, as regards the question of the imputability of MTPD’s conduct to the applicant, the finding that the applicant was aware of MTPD’s participation in that cartel is, in any event, irrelevant. In order to impute to a parent company the acts undertaken by its subsidiary, it is not necessary to prove that that parent company was directly involved in, or was aware of, the offending conduct. In this regard, it should be recalled that it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they form part of the same undertaking for the purposes of Article 101 TFEU that the Commission is able to address the decision imposing fines to the parent company (see judgment of 2 February 2012 in Case T‑76/08 EI du Pont de Nemours and Others v Commission, not published in the ECR, paragraph 76 and the case-law cited).