# C_2013129EN.01000602.xml

| 4.5.2013 | EN | Official Journal of the European Union | C 129/6 |
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Appeal brought on 21 February 2013 by Electrabel SA against the judgment of the General Court (Third Chamber) delivered on 12 December 2012 in Case T-332/09 Electrabel v Commission

(Case C-84/13 P)

2013/C 129/12

Language of the case: French

Parties

Appellant: Electrabel SA (represented by: M. Pittie and P. Honoré, avocats)

Other party to the proceedings: European Commission

Form of order sought

| — | Declare the appeal admissible and well founded; |
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| — | in consequence, set aside the judgment under appeal in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million; |
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| — | in consequence:
—
either refer the case back to the General Court for a fresh decision, —
or give final judgment granting the form of order sought by the applicant at first instance and annulling the decision at issue in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million or significantly reducing the amount of that fine; | — | either refer the case back to the General Court for a fresh decision, | — | or give final judgment granting the form of order sought by the applicant at first instance and annulling the decision at issue in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million or significantly reducing the amount of that fine; |
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| — | either refer the case back to the General Court for a fresh decision, | | | | |
| — | or give final judgment granting the form of order sought by the applicant at first instance and annulling the decision at issue in so far as it orders Electrabel to pay a fine in the amount of EUR 20 million or significantly reducing the amount of that fine; | | | | |

| — | order the European Commission to pay all the costs. |
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Pleas in law and main arguments

The appellant relies on three pleas in law in support of its appeal against the judgment by which the General Court affirmed the Commission’s decision of 10 June 2009 ordering Electrabel to pay a fine of EUR 20 million for infringement of Article 7 of Regulation (EEC) No 4064/89( 1 ) on the control of concentrations.

In the first place, the appellant claims that the General Court infringed the provisions of Article 14(3) of the aforementioned regulation, in that it accepted the alleged ‘duration’ of the infringement as a factor relevant to the setting of the amount of the fine, whereas that article provides that the amount of the fine must be set solely on the basis of the ‘nature’ and ‘gravity’ of the infringement.

In the second place, the appellant claims that the General Court failed to have regard to the principle that the law should not be retroactive, in that it applied the provisions of Regulation (EC) No 139/2004( 2 ) to a concentration that predated the entry into force of that regulation, and which was therefore covered by the provisions of Regulation (EEC) No 4064/89.

Lastly, the appellant takes the view that the General Court erred in law and that its reasons were contradictory, in that it categorised the infringement that Electrabel was found to have committed as continuous, whereas it was a one-off infringement.

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( 1 )  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).

( 2 )  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).

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