Judgment — ECLI:EU:T:2009:368
Date: 2009-09-30
Language of the case: French
Court formation: Seventh Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Statement of reasons;Definition of undertaking;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible;Appeal against penalty - inadmissible;Appeal against penalty - unfounded
Origin: France

Notice for the OJ Action brought on 27 April 2005 by Elf Aquitaine against the Commission of the European Communities (Case T-174/05) Language of the case: French An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 April 2005 by Elf Aquitaine, having its registered office in Courbevoie (France), represented by Eric Morgan de Rivery and Evelyne Friedel, lawyers. The applicant claims that the Court should: - annul Article 1(d) of Commission Decision C(2004) 4876 final of 19 January 2005, in so far as it determines that Elf Aquitaine infringed Article 81 EC between 1 January 1984 and 7 May 1999 and Article 53 EEA between 1 January 1994 and 7 May 1999; - consequently, annul (i) Article 2(c) of Commission Decision C(2004) 4876 final of 19 January 2005, in so far as it imposes a fine of EUR 45 million on Elf Aquitaine and Atofina jointly and severally, (ii) Article 3 of that same decision, in so far as it orders Elf Aquitaine to put an end to the infringements of Article 81 EC and of Article 53 EEA, and (iii) Article 4(9) of that decision, in so far as it addresses the decision to Elf Aquitaine; - in the alternative, annul Article 2(c) of Commission Decision C(2004) 4876 final of 19 January 2005, in so far as it imposes a fine of EUR 45 million on Elf Aquitaine and Atofina jointly and severally; - in the further alternative, amend Article 2(c) of Commission Decision C(2004) 4876 final of 19 January 2005, in so far as it imposes a fine of EUR 45 million on Elf Aquitaine and Atofina jointly and severally and reduce the fine imposed to an appropriate amount; - in any event, order the Commission to pay the costs in their entirety. Pleas in law and main arguments In the contested decision the Commission found that the applicant was involved in a concerted practice consisting of allocating production quotas and customers, agreeing price increases, setting up a compensation mechanism, exchanging information on sales volumes and prices, meeting regularly and being involved in other forms of contact, in order to agree on and implement the restrictions described. The Commission imposed a fine on the applicant as a result of these infringements. The applicant submits that the contested decision imposes a fine on it for an infringement committed by its subsidiary and claims that it should be annulled. It relies on the following pleas: In its first plea the applicant alleges infringement of its right to a fair hearing. It alleges that the Commission did not set out its arguments in its statement of objections clearly, that it did not discharge the burden of proof as it should have and that it did not take the facts resulting from the administrative procedure into account. In its second plea the applicant alleges lack of reasoning for the contested decision, in the light of the alleged novelty of holding the applicant liable for the actions of its subsidiary and the alleged failure to respond to the applicant's rebuttals. In its third plea the applicant submits that it is inconsistent to hold the applicant liable for the infringement and at the same time acknowledge that the subsidiary's involvement was minimal when it was put to an end. In its fourth plea the application alleges infringement of the rules governing the liability of a parent company for infringements committed by one of its subsidiaries. In its fifth plea the applicant claims that the contested decision infringes several essential principles that are recognised by all of the Member States and form an integral part of the Community legal order, namely the principle of the individual nature of penalties, the principle of legality and the general principle of presumption of innocence. Its sixth plea the applicant alleges several irregularities committed by the Commission during the procedure leading to the adoption of the contested decision, which the applicant considers as infringements of the principle of good administration. The applicant also submits, in its seventh plea, that the novelty of the criterion for holding parent companies liable for infringements committed by their subsidiaries, as applied in the contested decision, infringes the principle of legal certainty. As regards the two subsequent pleas, the applicant alleges that the Commission distorted the documentary evidence submitted and that the contested decision amounts to a misuse of powers. In the alternative, the applicant claims that the fine should be annulled on the ground that the Commission's reasoning for its calculation is completely incoherent. In the further alternative, the applicant claims that the amount of the fine should be reduced. ____________