# C_2011204EN.01001701.xml

| 9.7.2011 | EN | Official Journal of the European Union | C 204/17 |
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9.7.2011

EN

Official Journal of the European Union

C 204/17

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Appeal brought on 13 May 2011 by the European Commission against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-122/07 to T-124/07 Siemens AG Österreich and Others v Commission.

(Case C-231/11 P)

2011/C 204/31

Language of the case: German

Parties

Parties

Appellant: European Commission (represented by: A. Antoniadis, R. Sauer, N. von Lingen, Agents)

Appellant:

Other parties to the proceedings: Siemens AG Österreich, VA Tech Transmission & Distribution GmbH & Co. KEG, Siemens Transmission & Distribution Ltd, Siemens Transmission & Distribution SA, Nuova Magrini Galileo SpA.

Other parties to the proceedings:

Form of order sought

Form of order sought

The Commission claims that the Court should:

First,

| — | set aside paragraph 2 of the operative part of the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as it is based on the finding of the Court in Paragraph 157 of the judgment under appeal, that the Commission is obliged to determine the respective shares of the various companies in the fines imposed on them as jointly and severally liable; |
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set aside paragraph 2 of the operative part of the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as it is based on the finding of the Court in Paragraph 157 of the judgment under appeal, that the Commission is obliged to determine the respective shares of the various companies in the fines imposed on them as jointly and severally liable;

| — | set aside paragraph 3 of the operative part of the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as the General Court in accordance with the findings in Paragraph 158 in conjunction with Paragraphs 245, 247, 262 and 263 of the judgment under appeal imposed fines anew to include a determination of the proportion of the fine for which each individual company was liable; |
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set aside paragraph 3 of the operative part of the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as the General Court in accordance with the findings in Paragraph 158 in conjunction with Paragraphs 245, 247, 262 and 263 of the judgment under appeal imposed fines anew to include a determination of the proportion of the fine for which each individual company was liable;

Second, in the alternative,

| — | set aside the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as it imposed on the Commission in accordance with Paragraph 157 of the judgment under appeal an obligation to determine the respective shares of the various companies in the fines imposed on them as jointly and severally liable; |
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set aside the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as it imposed on the Commission in accordance with Paragraph 157 of the judgment under appeal an obligation to determine the respective shares of the various companies in the fines imposed on them as jointly and severally liable;

| — | set aside the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as the General Court in accordance with the findings in Paragraph 158 of the judgment under appeal in conjunction with Paragraphs 245, 247, 262 and 263 of the judgment determines the proportion of the fine for which each individual company was liable, and thereby alters the Commission Decision of 24. January 2007 (C(2006) 6762 final) in COMP/38.899 — Gas insulated switchgear; |
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set aside the judgment of the General Court of 3 March 2011 in Joined Cases T-122/07 to T-124/07, in so far as the General Court in accordance with the findings in Paragraph 158 of the judgment under appeal in conjunction with Paragraphs 245, 247, 262 and 263 of the judgment determines the proportion of the fine for which each individual company was liable, and thereby alters the Commission Decision of 24. January 2007 (C(2006) 6762 final) in COMP/38.899 — Gas insulated switchgear;

Gas insulated switchgear

Third,

| — | reject the claims in Joined Cases T-122/07, T-123/07 and T-124/07 for the annulment of Article 2(j) (k) and (l) of Decision C(2006) 6762 final; |
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reject the claims in Joined Cases T-122/07, T-123/07 and T-124/07 for the annulment of Article 2(j) (k) and (l) of Decision C(2006) 6762 final;

Fourth,

| — | order the respondents and applicants to pay the costs both of the appeal and of the proceedings at first instance. |
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order the respondents and applicants to pay the costs both of the appeal and of the proceedings at first instance.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| 1. | The obligation imposed on the Commission, to apportion individual liability on parties who are jointly and severally liable as between themselves, misconceives the limits on the powers and duties conferred on the Commission under Article 23 of Regulation No 1/2003 and encroaches on the national legal systems. Those powers and duties extend to the external relationship, in other words, the imposition of fines and when appropriate the determination that the parties to whom the decision is addressed should be jointly and severally liable. The internal relationship of parties who are jointly and severally liable as the result of a determination of joint and severally liability, which may include rights of recourse by one joint debtor against another is conversely, as a matter of principle, subject to the law of the Member States. |
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1.

The obligation imposed on the Commission, to apportion individual liability on parties who are jointly and severally liable as between themselves, misconceives the limits on the powers and duties conferred on the Commission under Article 23 of Regulation No 1/2003 and encroaches on the national legal systems. Those powers and duties extend to the external relationship, in other words, the imposition of fines and when appropriate the determination that the parties to whom the decision is addressed should be jointly and severally liable. The internal relationship of parties who are jointly and severally liable as the result of a determination of joint and severally liability, which may include rights of recourse by one joint debtor against another is conversely, as a matter of principle, subject to the law of the Member States.

| 2. | The General Court exceeded the boundaries of its unlimited jurisdiction to review, where it determined fixed proportions of liability in that internal relationship with regard to possible claims for redress before the national courts. |
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2.

The General Court exceeded the boundaries of its unlimited jurisdiction to review, where it determined fixed proportions of liability in that internal relationship with regard to possible claims for redress before the national courts.

| 3. | The duty asserted by the Court that the Commission must undertake a comprehensive resolution of the legal effects of the attribution of joint and several liability cannot be supported by the principle that penalties must be specific to the individual and to the offence which is relied on by the General Court for that purpose; in any event it is contrary to the principle of liability of undertakings for infringements of Articles 101 and 102 TFEU. |
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3.

The duty asserted by the Court that the Commission must undertake a comprehensive resolution of the legal effects of the attribution of joint and several liability cannot be supported by the principle that penalties must be specific to the individual and to the offence which is relied on by the General Court for that purpose; in any event it is contrary to the principle of liability of undertakings for infringements of Articles 101 and 102 TFEU.

| 4. | The General Court’s ruling was ultra petita and the Court failed to respect the principle of inter partes proceedings, where it effected an allocation of liability in the internal relationship and implicitly an alteration of the decision which was not sought and was not the subject of sufficient argument. |
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4.

The General Court’s ruling was ultra petita and the Court failed to respect the principle of inter partes proceedings, where it effected an allocation of liability in the internal relationship and implicitly an alteration of the decision which was not sought and was not the subject of sufficient argument.

ultra petita

inter partes

| 5. | The General Court is further in breach of the obligation to state reasons, because the supporting grounds for the decision cannot with sufficient clarity be extracted from the judgment and the General Court did not deal with the arguments put forward by the Commission in relation to joint and several liability. |
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5.

The General Court is further in breach of the obligation to state reasons, because the supporting grounds for the decision cannot with sufficient clarity be extracted from the judgment and the General Court did not deal with the arguments put forward by the Commission in relation to joint and several liability.

| 6. | Finally, the judgment encroaches on the Commission’s discretion in relation to the identification of the parties who are liable. |
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6.

Finally, the judgment encroaches on the Commission’s discretion in relation to the identification of the parties who are liable.

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