EN Official Journal of the European Union C 355/10

Appeal brought on 27 September 2011 by Total SA and Elf Aquitaine SA against the judgment delivered by the General Court (Sixth Chamber, Extended Composition) on 14 July 2011 in Case T-190/06 Total and Elf Aquitaine v Commission

(Case C-495/11 P)

2011/C 355/17

Language of the case: French

Parties

Appellants: Total SA and Elf Aquitaine SA (represented by: E. Morgan de Rivery and A. Noël-Baron, avocats)

Other party to the proceedings: European Commission

Form of order sought

Primarily:

— on the basis of Article 263 TFEU, set aside the judgment of the General Court of 14 July 2011 in Case T-190/06 Total and Elf Aquitaine v Commission;

— grant the forms of order sought at first instance before the General Court;

— consequently, annul Articles 1(o) and (p), 2(i), 3 and 4 of Commission Decision C(2006) 1766 final of 3 May 2006;

in the alternative:

— cancel, on the basis of Article 261 TFEU, the fines imposed on Elf Aquitaine and Total jointly and severally under Article 2(i) of that decision;

in the further alternative:

— amend, on the basis of Article 261 TFEU, the fines imposed on Elf Aquitaine and Total jointly and severally under Article 2(i) of that decision;

— in any event, order the European Commission to pay all the costs, including those incurred by Elf Aquitaine and Total before the General Court.

Pleas in law and main arguments

In support of their appeal, the appellants raise five main grounds of appeal, one in the alternative and one in the further alternative.

By the first ground of appeal, Total SA and Elf Aquitaine SA claim that the General Court infringed Article 5 TEU in so far as it validated the principle that a parent company is automatically liable for the infringements committed by its subsidiary, which the Commission applied in the present case and justified by the concept of undertaking within the meaning of Article 101 TFEU. Such an approach is incompatible with the principles of conferral of powers and subsidiarity (first part) and with the principle of proportionality (second part).

By the second ground of appeal, the appellants submit that the General Court’s interpretation of national law and of the concept of undertaking was manifestly erroneous in that, inter alia, it conferred the wrong legal status on the principle of autonomy of legal persons.

By the third ground of appeal, the appellants claim, in essence, that the General Court deliberately refused to draw the appropriate conclusions from the criminal nature of competition law sanctions and from the new obligations resulting from the Charter of Fundamental Rights of the European Union. In the appellants’ view, the General Court applied the concept of undertaking under European Union law unlawfully and erroneously, without regard to the presumption of autonomy on which national company law is based and to the criminal nature of competition law sanctions. Moreover, the appellants submit that the General Court should have raised, of its own motion, the illegality of the current administrative procedure before the Commission.

By the fourth ground of appeal, the appellants allege infringement of the rights of the defence as a result of an erroneous interpretation of the principles of fairness and equality of arms. The General Court approved the Commission’s use of probatio diabolica and erred in finding that a subsidiary’s autonomy must be assessed in general terms by reference to its capital links with its parent company, whereas it ought to be assessed by reference to conduct on a given market.

By the fifth ground of appeal, the appellants submit that the General Court made errors of law in relation to the Commission’s obligation to state the reasons for its decision (first part). Furthermore, the parties claim that the General Court substituted its own reasoning for that of the Commission (second part).

By the sixth ground of appeal, the appellants seek, in the alternative, cancellation of the fines imposed on them.

Lastly, by the seventh ground of appeal, put forward in the further alternative, the appellants seek a reduction in the fines imposed on them.