EN Official Journal of the European Union C 211/18

Appeal brought on 24 May 2011 by Areva against the judgment of the General Court (Second Chamber) delivered on 3 March 2011 in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission

(Case C-247/11 P)

2011/C 211/36

Language of the case: French

Parties

Appellant: Areva SA (represented by: A. Schild, lawyer)

Other parties to the proceedings: Alstom, European Commission

Form of order sought

— set aside the judgment under appeal;

— if the Court of Justice considers that the state of the proceedings is such as to permit final judgment in the matter: — principally, set aside the following provisions of the decision at issue: — Article 1(c), — Article 2(c); — in the alternative, substantially reduce the fine imposed on the appellant; — order the Commission to pay all the costs, including those incurred by the appellant before the General Court;

— if the Court of Justice considers that the state of the proceedings is not such as to permit final judgment in the matter, refer the case back to a Chamber of the General Court with a different composition and reserve the costs.

Pleas in law and main arguments

The appellant puts forward four pleas in support of its appeal.

The first plea alleges infringement by the General Court of the rules relating to the statement of reasons and of the rights of the defence in the analysis of the effective exercise of decisive influence by Areva SA over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004. In this respect, the appellant observes that the General Court infringed Articles 36 and 53 of Protocol (No 3) on the Statute of the Court of Justice of the European Union (the obligation for the General Court to state the reasons on which its judgments are based) in so far as, in paragraph 150 of the judgment under appeal, the General Court substituted its own reasoning for that of the Commission by retrospectively adding to the decision at issue reasons which do not appear in that decision. The appellant also observes that the General Court infringed its obligation to state reasons in so far as its arguments do not make it possible to understand the reasons why it did not accept the appellant's arguments. Lastly, the appellant observes that the General Court infringed Areva SA's rights of defence by imposing on it a probatio diabolica in the context of the demonstration of the absence of effective exercise of decisive influence by the parent company over its subsidiaries and by refusing to afford it an opportunity of giving its views on the new arguments that the General Court added to the decision at issue.

The second plea alleges that the General Court erred in law when applying the rules relating to joint and several liability for the payment of fines, which resulted in infringement of the principle of legal certainty and the principle that the penalty must be specific to the offender. The appellant submits that, by imposing fines which have the effect of creating ‘de facto’ joint and several liability between two companies which have never formed a single economic unit, the General Court infringed the abovementioned principles.

The third plea alleges misinterpretation by the General Court of the rules relating to the unlawful delegation of the Commission's powers, incorrect reasoning by the General Court and infringement of the principle that the penalty must be specific to the offender because liability was not clearly apportioned between co-debtors in the context of joint and several liability. In this respect, Areva SA claims, first, that the General Court erred in law by interpreting the Commission's decision in a manner contrary to the Commission's intention so as to find a ‘solution’, which, without having any basis in law, enabled it to reject the appellant's arguments concerning the delegation of the Commission's powers. The appellant claims, second, that the General Court's solution infringes the general principle of legal certainty and the general principle that the penalty must be specific to the offender.

The fourth and final plea alleges an error of law regarding the application of the principles of proportionality and equal treatment as regards the fine imposed jointly and severally on Areva SA. The appellant submits that, by failing to use its power of unlimited jurisdiction and by upholding fines which do not take account of the duration of the infringement committed, the General Court infringed those principles.