OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 19 September 2013 ( 1 )

Joined Cases C‑247/11 P and C‑253/11 P

Areva SA (C‑247/11 P),

Alstom SA,

T&D Holding SA, formerly Areva T&D Holding SA,

Alstom Grid SAS, formerly Areva T&D SA,

Alstom Grid AG, formerly Areva T&D AG (C-253/11 P)

v

European Commission

‛Appeals — Competition — Agreements, decisions and concerted practices — Market for gas insulation switchgear projects — Obligation to state reasons — Breach of the rights of the defence — Imputability of the unlawful conduct — Joint and several liability for payment of the find — ‘De facto’ joint and several liability — Principles of proportionality and equal treatment — Right to an effective remedy’

1. The present joined cases concern two appeals brought, respectively, in Case C‑247/11 P, by Areva SA (‘Areva’) and, in Case C‑253/11 P, by Alstom SA (‘Alstom’) and its subsidiaries T&D Holding SA, formerly Areva T&D Holding SA, Alstom Grid SAS, formerly Areva T&D SA, and Alstom Grid AG, formerly Areva T&D AG (all of those companies will also be referred to jointly below as ‘the appellants’). Both appeals are against the judgment of the General Court of the European Union of 3 March 2011 in Areva and Others v Commission (‘the judgment under appeal’). ( 2 ) By that judgment, the General Court, first, annulled in part Decision C(2006) 6762 final (‘the decision at issue’), ( 3 ) in which the European Commission, after finding the existence of an anti-competitive arrangement in the gas insulated switchgear (‘GIS’) sector, ( 4 ) imposed penalties on the participating undertakings, and, second, varied the fines imposed by the Commission on the companies that have brought the present appeals.

2. This Opinion is delivered at the same time as my Opinion in Joined Cases C‑231/11 P, C‑232/11 P and C‑233/11 P Commission v Siemens Österreich and Others, ( 5 ) which relate to the same cartel and the same Commission decision. In so far as certain of the issues that arise in the present cases coincide, at least in part, with those examined in those cases, I shall, whenever appropriate, refer to the relevant points of my Opinion in those cases.

I – Facts

A – The appellants

3. Areva, the appellant in Case C‑247/11 P, is the holding company of a group of companies operating in the nuclear sector.

4. Alstom, the first appellant in Case C‑253/11 P, is the holding company of an industrial group active in various sectors, including the transmission and distribution of electricity (‘the T&D sector’).

5. All the Alstom group’s activities in the T&D sector were transferred on 8 January 2004 to the group of which Areva is the holding company. For the period 9 January to 11 May 2004 (the date of the end of the infringement found by the Commission in the decision at issue) the GIS activities of the Areva group were carried out by Areva T&D SA and by Areva T&D AG, ( 6 ) wholly-owned subsidiaries of Areva T&D Holding SA, which was itself wholly owned by Areva (together ‘the former Areva subsidiaries’).

6. On 7 June 2010, after the definitive closure of the oral procedure before the Court, Areva sold its entire business in the T&D sector. In particular, Alstom re-acquired the transmission activities. Following that acquisition, Areva T&D Holding SA took the name T&D Holding SA – the second appellant in Case C‑253/11 P –Areva T&D SA became Alstom Grid SAS – the third appellant in Case C‑253/11 P – and Areva T&D AG became Alstom Grid AG – the fourth appellant in Case C‑253/11 P. Alstom, and its present subsidiaries T&D Holding SA, Alstom Grid SAS and Alstom Grid AG, the appellants in case C‑253/11 P, will also be called, together, ‘the Alstom group companies’.

B – The decision at issue and the judgment under appeal

7. On 24 January 2007 the Commission adopted the decision at issue, in which it found the existence of an anti-competitive arrangement in the GIS sector, whereby the participating undertakings had agreed, inter alia, to allocate the markets worldwide, ( 7 ) fix prices and exchange sensitive information. The Commission also found that the cartel had been in operation over the period 5 April 1988 to 11 May 2004. In particular, it found that the appellants in the present case were liable ( 8 ) and, in consequence, imposed fines on them. ( 9 )

8. The appellants brought actions against the decision at issue before the General Court, which delivered the judgment under appeal on 3 March 2011. In the judgment under appeal, the General Court annulled the decision at issue in part ( 10 ) and then, in the exercise of its unlimited jurisdiction, imposed the following fines for the infringements found: — Alstom: EUR 10 327 500; — Alstom: EUR 48 195 000, jointly and severally with Areva T&D SA, EUR 20 400 000 of the amount owed by Areva T&D SA being payable jointly and severally by Areva T&D SA and Areva T&D AG, Areva and Areva T&D Holding SA. ( 11 )

9. The General Court dismissed the actions as to the remainder.

II – Procedure before the Court of Justice and forms of order sought

10. By application lodged at the Court Registry on 24 May 2011, Areva brought the appeal in Case C‑247/11 P. By application lodged at the Court Registry on 25 May 2011, the Alstom group companies brought the appeal in Case C‑235/11 P. Both Areva and the Alstom group companies ask the Court to set aside the judgment under appeal. In the event that the Court should consider that the case is ready for final judgment, they request the Court, primarily, to annul, respectively, Articles 1(c) and 2(c) and Articles 1(b), (d), (e) and (f) and 2(b) and (c) of the decision at issue and, in the alternative, to reduce substantially the fines imposed on them and also to order the Commission to pay the costs. In the event that the Court should consider that the case is not ready for judgment, the appellants ask that the case be referred to a different Chamber of the General Court and to reserve the costs. The Commission claims that the Court should dismiss the appeals and order the appellants to pay the costs.

11. By order of 20 July 2011, the President of the Court ordered Cases C‑247/11 P and C‑253/11 P to be joined for the purposes of the written and oral procedures and the judgment.

12. Before the Court, the parties set out their positions in writing and made oral submissions at the hearing on 2 May 2003.

III – Analysis of the appeals

13. In support of the forms of order sought, Areva, in Case C‑247/11 P, puts forward four pleas in law and the Alstom group companies, in Case C‑253/11 P, put forward five pleas in law. It is appropriate to begin by examining the Alstom group companies’ first plea.

A – The Alstom group companies’ first plea, alleging infringement of Article 296 TFEU

14. In the context of their first plea, which may be subdivided into two parts, the Alstom group companies claim that the General Court, in holding that the decision at issue contained an adequate statement of reasons, infringed Article 296 TFEU. ( 12 ) The first part of this plea relates to the reasons stated in the decision at issue for imputing to Alstom liability for the infringement for the period 7 December 1992 to 8 January 2004 in its capacity as parent company of Alstom T&D SA and Alstom T&D AG. ( 13 ) The second part relates to the reasons stated in the decision at issue for imposing on Alstom and Areva T&D SA a fine for which they were jointly and severally liable.

1. First part of the first plea of the Alstom group companies

a) Arguments of the parties

15. In the first part of their first plea, which refers to paragraphs 90 to 99 of the judgment under appeal, the Alstom group companies maintain, essentially, that the General Court ought to have found that the decision at issue was vitiated by insufficient reasoning in that the Commission did not answer in that decision the arguments and evidence put forward by Alstom at paragraphs 90 to 150 of its reply to the statement of objections and seeking to show that, in spite of the presumption that it exercised decisive influence over its subsidiaries (also referred to below as ‘the capital presumption’), at the time of the infringement the subsidiaries determined their conduct on the market independently of their parent company. The decision at issue states no reasons on which it might be understood why the evidence put forward by Alstom had no probative value, when the evidence in question was essential to the structure of that decision and its rejection required particularly detailed and careful reasoning.

16. The Alstom group companies maintain, moreover, that the General Court distorted the decision at issue, in particular at paragraph 95 of the judgment under appeal, because recitals 345 to 347 to the decision at issue do not summarise paragraphs 90 to 150 of the reply to the statement of objections. In addition, the General Court accepted the fact that the Commission rejected the evidence supplied by Alstom on the basis of evidence produced by a third party, namely Areva.

17. The Commission submits that the Alstom group companies’ arguments should be rejected.

b) Analysis

18. It should be borne in mind, first of all, that the obligation to state reasons laid down in Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the measure at issue. ( 14 )

19. From that aspect, first, the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted it in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged. ( 15 )

20. Second, the requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. ( 16 )

21. Thus, although the Commission is required under Article 296 TFEU to set out all the circumstances of fact and law justifying the adoption of a decision and the legal considerations which led the Commission to adopt it, that article does not require the Commission to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings. ( 17 )

22. In particular, where, as in the present case, a decision taken in application of the EU competition law rules relates to several addressees and raises a problem with regard to the imputability of the infringement, it must include an adequate statement of reasons with respect to each of its addressees, in particular those of them who, according to the decision, must bear the liability for the infringement. Accordingly, with regard to a parent company held to be responsible for the unlawful conduct of its subsidiary, such a decision must, as a general rule, contain a detailed statement of reasons capable of justifying the imputation of liability for that infringement to the parent company. ( 18 )

23. As regards, more specifically, a Commission decision which relies exclusively, with respect to certain addressees, on the presumption that they actually exercised decisive influence, the Commission is in any event required to explain adequately to those addressees the reasons why the elements of fact and of law put forward did not suffice to rebut that presumption, if it is not to render that presumption in reality irrebuttable. ( 19 )

24. In the present case, it should first of all be observed that, as explicitly stated at recital 349 to the contested decision and paragraph 91 of the judgment under appeal, the Commission, in order to find Alstom liable, relied on the presumption that it exercised decisive influence, but did not fail to consider as well certain other relevant factors which it set out at recitals 350 to 356 to that decision. In order to find Alstom liable, the Commission therefore did not rely exclusively on the presumption that it exercised decisive influence, but used, rather, a combination of that presumption and other evidence. ( 20 )

25. More specifically, in those recitals to the decision at issue, the Commission explained, inter alia, that the structure of the functioning of the group of which Alstom was the parent company was organised in such a way that the management exercising decisive influence over the subsidiaries’ GIS activities reported to Alstom. ( 21 ) It also explained that a number of individuals simultaneously held senior positions in the parent company and the subsidiaries, as in the case of the ‘top manager’ of the T&D sector, who had certainly exercised decisive influence over the group’s GIS activities and was a member of Alstom’s executive committee. ( 22 ) Next, the Commission observed that the file contained evidence that the individuals identified in connection with the cartel as representatives of the Alstom group had regularly been able to commit the parent company. ( 23 ) In addition, the Commission considered that, in the light of the significant fine which had been imposed on Alstom by the French Competition Council in 1988, it was unlikely that liability for infringement of the competition rules was not identified as a substantial risk by the management of the parent company. ( 24 ) The Commission also observed that the parent company approved the proposed bids relating to GIS substations that exceeded a certain threshold or involved substantial risks for the group. ( 25 )

26. In the light of those explicit considerations in the decision at issue, I am unable to see how it would be possible to maintain, as the Alstom group companies do, that the General Court ought to have reprimanded the Commission for not having supplied detailed reasoning in accordance with the requirements of the case-law referred to at points 18 to 23 with respect to the attribution to Alstom of liability for the infringement in question.

27. Before the Commission, Alstom put forward a series of arguments seeking to demonstrate that it did not exercise decisive influence over its subsidiaries. ( 26 ) In that regard, it is true, as the Alstom group companies claim, and as the General Court acknowledges at paragraph 98 of the judgment under appeal, that it is not clear from the decision at issue that the Commission addressed all the argument which Alstom put forward before it.

28. However, it is apparent from the decision at issue that, far from ignoring those arguments, the Commission in essence carried out a global assessment, ( 27 ) providing, as may be inferred from point 25 above, detailed reasons which, in combination with the capitalistic presumption, led it to conclude that Alstom did in fact exercise decisive influence over its subsidiaries.

29. In that regard, I have already observed at points 19 to 21 above that, according to the case-law, in order to satisfy its obligation to state reasons, the Commission is not required to mention specifically all the arguments raised by the parties during the administrative procedure provided that the reasoning is sufficient to enable those concerned to know the reasons for the measure adopted and, particularly in the case of a parent company held liable for the unlawful conduct of its subsidiary, that it contains a detailed account of the grounds that justify the infringement being imputed to the parent company.

30. Admittedly, it is generally desirable that the Commission should mention in a structured and detailed manner the arguments and elements of fact and of law supplied by the parties during the administrative procedure, in particular those supplied in order to demonstrate that the parent company did not exercise decisive influence over the subsidiary. However, in a case such as this, where, in order to attribute liability for the infringement to the parent company, the Commission did not rely exclusively on the capitalistic presumption, but explicitly considered other relevant factors, I consider that it is entitled to examine and evaluate globally the arguments and elements put forward – as it did in the present case – provided that the reasoning on which the measure is based sufficiently enables the party concerned, namely the parent company, to ascertain the reasons for the decision eventually adopted, in this instance the decision to impute to it liability for the infringement.

31. For the remainder, I would point out that the Alstom group companies have not explained how what they allege to be the flawed reasons stated for the decision at issue prevented them from properly defending their rights before the General Court or prevented that Court from exercising its power of review. On the contrary, the detailed examination carried out by the General Court, at paragraphs 93 to 97 of the judgment under appeal, of the arguments put forward in order to rebut the presumption of decisive influence demonstrates, rather, that Alstom was able properly to defend its rights before the General Court and that that Court was able to exercise its power to review the decision at issue. ( 28 )

32. In the light of the foregoing, I consider that the General Court did not fail to have regard to the scope of the Commission’s obligation to state reasons, as recognised in the case-law, and did not err in law in considering that the decision at issue was sufficiently reasoned as regards the attribution to Alstom of liability for the infringement for the period from 7 December 1992 until 8 January 2004. That conclusion cannot be called into question by the other arguments put forward by the Alstom group companies.

33. As regards the judgment in Elf Aquitaine v Commission, to which the Alstom group companies refer, in which the Court of Justice set aside the judgment of the General Court on the ground that it had disregarded the Commission’s obligation to state reasons, it is sufficient to observe that, unlike the situation in that case, the Alstom group companies were not, in the present case, faced with the first Commission decision in which the Commission altered its usual approach and relied solely on the presumption that the parent company had exercised decisive influence over the subsidiary in order to impute the infringement to the parent company. Accordingly, they cannot rely in this case on the solution adopted in that judgment.

34. As regards the complaint that, in asserting at paragraph 95 of the judgment under appeal that recitals 345 to 347 of the decision at issue constituted a summary of the arguments put forward by Alstom at paragraphs 90 to 150 of its reply to the statement of objections, the General Court distorted the decision at issue, it is in my view ineffective and, in any event, unfounded. It is ineffective because, even if the General Court had made an error in that respect, that would not in any way detract from the assertion made in the preceding points, namely that the Commission stated to the requisite legal standard its reasons for imputing liability to Alstom; and it is unfounded because, as I have already stated, in reality the Commission did deal with the substance of the arguments put forward before it by Alstom. ( 29 )

35. As regards the argument that the Commission relied on evidence supplied by a third party, there is no rule of EU law that would prevent the Commission from using – clearly, while respecting the rights of the defence – such evidence in so far as it is relevant. It seems clear to me that, in so far as it had purchased from Alstom the subsidiaries that had participated in the infringement, Areva could have relevant information about the functioning of those subsidiaries during the period before the sale. For the remainder, the Alstom group companies do not specify what evidence they challenge, let alone claim that that evidence was distorted.

36. It follows from all the foregoing that, to my mind, the first part of the first plea should be rejected.

2. The second part of the Alstom group companies’ first plea

37. In the second part of their first plea, which relates to paragraph 200 of the judgment under appeal, the Alstom group companies take issue with the General Court for having held that the Commission was entitled not to state the reasons why two companies that did not form an economic entity on the date on which a decision was adopted could be given a fine for which they were jointly and severally liable. In particular, they take issue with the General Court for not having criticised the Commission, at paragraph 200 of the judgment under appeal, for not having given specific reasons for the fact that it had imposed a fine jointly and severally on Alstom and Areva T&D SA (which became Alstom Grid SAS) when they no longer formed an undertaking at the time of adoption of the decision at issue.

38. In that regard, I consider that, in the present case, the General Court was able, without making an error of law, not to find fault with the Commission for not having stated specific reasons for the decision to impose a fine jointly and severally on Alstom and Areva T&D SA for the period during which they formed a single undertaking.

39. I have already observed, at points 20 and 21 above, that, according to the case-law, Article 296 TFEU does not require that the Commission discuss all the matters of fact and of law dealt with during the administrative procedure. ( 30 ) Furthermore, according to the case-law, a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner and it is only if it goes appreciably further than the previous decisions that the Commission must give a fuller account of its reasoning. ( 31 )

40. Contrary to the Alstom group companies’ contention, the imposition of a fine jointly and severally on a subsidiary which participated in the infringement and the former parent company for the infringement period during which the two companies constituted a single undertaking for the purposes of competition law is not distinguished from the Commission’s previous practice and has not been called into question in the case-law. ( 32 )

41. That practice is based on the idea that, in so far as, over a certain period, certain companies constituted an undertaking for the purposes of competition law that committed an infringement of the competition rules, the Commission may impose on them jointly and severally a fine for the infringement committed during that period. ( 33 ) Without prejudice to the considerations which I shall set out at point 155 et seq. below, when I examine the Alstom group companies’ fourth plea, I observe that the fact that, when the Commission’s decision was adopted, those companies no longer constituted a single economic entity, is not a fact which, in itself alone, ( 34 ) precludes the imposition on them, jointly and severally, of a fine in their capacity as persons who may be considered jointly and severally liable for the actions of the undertaking of which they formed part. ( 35 )

42. In those circumstances, as the Commission stated to the requisite legal standard, as is apparent from the analysis of the first part of the first plea, its reasons for attributing to the parent company liability for the infringement, I consider that, in this case, the Commission is not to be criticised for not having supplied specific reasons for ordering the parent company and the subsidiary which participated directly in the infringement jointly and severally to pay the fine, even though the companies concerned no longer constituted a single economic entity at the time when the decision at issue was adopted. ( 36 )

43. It follows that, to my mind, the second part of the Alstom group companies’ first plea and, accordingly, the first plea in its entirety, should be rejected.

B – The Alstom group companies’ second plea, alleging breach by the General Court of its obligation to state reasons and infringement of Article 263 TFEU, and Areva’s first plea, alleging breach by the General Court of its obligation to state reasons and also breach of the rights of the defence

44. By their second plea, which is subdivided into four parts, the Alstom group companies maintain that the General Court breached the obligation to state reasons for its judgment arising from Articles 36 and 53 of the Statute of the Court of Justice of the European Union and also infringed Article 263 TFEU. More particularly, by the first three parts of their second plea, the Alstom group companies claim that the General Court breached its duty to state reasons and infringed Article 263 TFEU in that on a number of occasions it substituted its own reasoning for the Commission’s by adding a posteriori to the decision at issue grounds which were not to be found in that decision. The first and second parts refer to the reasons stated for the judgment under appeal in connection with the attribution of liability for the infringement, respectively, to Alstom and to T&D Holding SA (formerly Areva T&D Holding SA) as parent companies. The third part refers to the General Court’s reasoning at paragraphs 214 to 216 of the judgment under appeal, relating to the contribution in equal parts to payment of a fine for which they were jointly and severally liable. That part is closely linked to the questions discussed in the context of the Alstom group companies’ fourth plea and will therefore be examined together with that plea at point 155 et seq. In the fourth part of their second plea, the Alstom group companies dispute the reasoning stated in the judgment under appeal in that the General Court held that companies that do not form an economic unit at the date of adoption of the decision at issue may have a fine imposed on them jointly and severally.

45. By its first plea, Areva claims that the General Court breached its obligation to state reasons and the rights of the defence in the context of the analysis of the actual exercise of decisive influence over Areva’s former subsidiaries during the period 9 January to 11 May 2004.

46. In so far as, in the context of these pleas, the appellants claim that there has been a breach by the General Court of its obligation to state reasons, I consider it necessary first of all to recall the scope of that obligation as defined in the case-law, making reference in particular to the limits placed on the General Court in the context of its review of legality in relation to the extent of the reasoning stated in the contested measure.

1. The scope of the General Court’s obligation to state reasons and the prohibition on the substitution of its own reasoning for that set out in the contested measure

47. The obligation of the General Court to state the reasons on which its judgments are based follows from Article 36, in conjunction with the first paragraph of Article 53, of the Statute of the Court of Justice.

48. It is settled case-law that a judgment must disclose in a clear and unequivocal fashion the reasoning followed by the General Court, in such a way as to enable the persons concerned to ascertain the reasons for the decision adopted and the Court of Justice to exercise its power of review. ( 37 )

49. However, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. ( 38 )

50. Next, in an action for annulment, the Court of Justice and the General Court cannot in any circumstances substitute their own reasoning for that of the institution that adopted the contested measure. ( 39 ) It follows that the Courts of the European Union may not provide an EU legal measure based on incorrect, or even unlawful, or insufficient grounds with completely different grounds and then uphold it. Outside the scope of their unlimited jurisdiction (Article 261 TFEU), the Courts of the European Union may not amend the contested measure, but must declare it to be void if and in so far as the action for annulment is well founded (first paragraph of Article 264 TFEU). ( 40 )

51. However, that being so, first, there is nothing to prevent the Courts of the European Union from comprehensively reviewing the pleas in law and arguments put forward by the applicants in order to ascertain whether they are well founded and from considering them in detail. ( 41 ) Second, it follows from the case-law that although in annulment proceedings the General Court may be led to interpret the reasoning of the contested measure in a manner which differs from that of the institution that adopted it, and even, in certain circumstances, to reject the latter’s formal statement of reasons, it cannot do so where there is no material factor to justify such a course of action. ( 42 )

52. It is therefore in the light of those principles expressed in the case-law that it must, in my view, be determined whether the General Court unlawfully substituted its own reasoning for that contained in the decision at issue. To that end, it will be necessary to ascertain whether, in the judgment under appeal, the General Court confined itself to examining, even in detail, the pleas and arguments raised before it by the appellants in order to determine whether they were well founded or whether, on the contrary, it provided the decision with completely different grounds in order to uphold it.

53. In that regard, it should further be added that, while it is true, as the Alstom group companies assert, that European proceedings for review of the legality of the acts of the institutions are ‘proceedings applied to an act’, so that, as already stated, it is not possible to add new and different reasons to that act in order to ‘salvage’ it, that does not alter the fact that, in order to exercise to the full their power of review, the Courts of the European Union must be able to answer in full the arguments raised by the applicants before them. To that end, the Courts may be required to analyse arguments or evidence put forward during the administrative procedure, even in greater detail than that applied in the contested measure. ( 43 ) Provided that the reasoning on which the measure is based is sufficient in itself and not vitiated by an error, there is nothing to prevent the General Court from providing reasoning which contains, in answer to the arguments put forward before it by the parties to the dispute, an analysis or reasoning with respect to the arguments or evidence presented before the Commission that is more detailed than that contained in the contested measure.

2. The first part of the Alstom group companies’ second plea

54. By the first part of their second plea, which refers to paragraphs 101 to 110 of the judgment under appeal, the Alstom group companies take issue with the General Court for having substituted its own reasoning for the Commission’s and for having introduced substantial grounds serving as an a posteriori basis for the decision as regards the examination of the evidence intended to rebut the presumption that Alstom exercised decisive influence over its subsidiaries during the period 7 December 1992 to 8 January 2004. In particular, paragraphs 102 to 110 of the judgment under appeal contain an analysis of certain of the arguments developed by Alstom at paragraphs 90 to 150 of its reply to the statement of objections. The General Court adopts a position on that evidence and evaluates it, whereas such evaluations do not appear in the decision at issue and were therefore added to the wording of that decision.

55. In that regard, I have already observed when analysing the first part of the first plea ( 44 ) put forward by the Alstom group companies that the General Court did not err in holding that the Commission had provided sufficient reasoning in the decision at issue when imputing to Alstom liability for the infringement committed during the period 7 December 1992 to 8 January 2004.

56. In that context, the judgment under appeal does not provide the decision at issue with reasoning completely different from that on which the Commission relied in order to hold Alstom liable. The reasoning stated in the judgment under appeal is consistent with the grounds on which the decision at issue is based. Admittedly, in answer to the arguments raised before it by Alstom, the General Court, at paragraphs 102 to 109 of the judgment under appeal, carried out a very precise analysis of a series of documents that Alstom had supplied during the administrative procedure. Such a detailed analysis is not to be found in the decision at issue, but that does not mean that the General Court unlawfully substituted its own reasoning for the reasoning set out in that decision.

57. In accordance with what I stated at point 53 above, I consider that, in so far as the reasoning on which the decision at issue is based, as regards the imputation to Alstom of the infringement committed during the period in question, is sufficient in itself and not vitiated by an error, there was nothing to prevent the General Court, in order to answer the arguments raised before it by Alstom, from carrying out a detailed analysis of the arguments and evidence presented before the Commission that is more detailed than the analysis in the decision at issue. On the contrary, such an approach seems to me to be proof of the diligence displayed by the General Court in its analysis of the arguments put forward before it by Alstom.

58. It follows from those considerations that the first part of the Alstom group companies’ second plea must be rejected.

3. Areva’s first plea and the second part of the Alstom group companies’ second plea

a) Arguments of the parties

59. In the context of its first plea, which refers to paragraphs 144 to 152 of the judgment under appeal, Areva claims that there has been a breach by the General Court of the obligation to state reasons and of the rights of the defence. Areva maintains that, at paragraph 150 of the judgment under appeal, the General Court substituted its own reasoning for the Commission’s by adding a posteriori to the decision at issue two new factors in order to reject the claims that, for the period from 9 January to 11 May 2004, Areva and Areva T&D holding SA did not have sufficient experience of the T&D sector to be able actually to exercise decisive influence over the conduct of their subsidiaries. Areva disputes, first, the assertion that it could have acquired knowledge of the T&D sector between the conclusion of the agreement on the transfer of Alstom’s T&D subsidiaries in September 2003 and the effective transfer of those subsidiaries on 8 January 2004 and, second, the assertion that it could not be ruled out that the recruitment of a new director for those subsidiaries from outside the group enabled Areva to equip itself with expertise in the T&D sector.

60. First, Areva maintains that those two factors were not first put forward by the Commission and thus constitute, on the part of the General Court, an addition to or a substitution for the grounds on which the decision at issue was based. Second, the General Court’s arguments do not enable its reasons for not upholding Areva’s arguments to be understood and the judgment under appeal is thus vitiated by defective reasoning. Third, the General Court also breached Areva’s rights of defence: by relying on factors which in reality were assumptions, it made the capitalistic presumption irrebuttable and imposed a probatio diabolica on Areva in the context of the demonstration of the absence of the actual exercise of decisive influence over its former subsidiaries by requiring it to adduce negative proof of its non-interference with their conduct; and, in addition, the General Court did not give Areva the opportunity to comment on the abovementioned new factors which were added to the decision at issue.

61. In its reply, Areva claims that the General Court made an error of law in failing to censure the Commission for having breached its obligation to state reasons in the context of the analysis of Areva’s actual exercise of decisive influence over its former subsidiaries. Areva maintains, in particular, that the Commission failed to respond to certain arguments raised by Areva and did not adopt a detailed position on other arguments which it had raised.

62. In the context of the second part of their second plea, the Alstom group companies, and in particular T&D Holding SA, raise in essence the same complaint as Areva’s, alleging breach by the General Court of its obligation to state reasons. Thus, they submit that the General Court did not confine itself to adjudicating on the points in the decision at issue as regards T&D Holding SA’s acquisition of knowledge of the T&D sector, but added two new factors, namely those referred to by Areva and described at point 59 above. Those two new factors were not discussed during the administrative procedure and the General Court therefore amended and supplemented the reasoning in the decision at issue by unlawfully substituting grounds for those stated in that decision.

63. The Commission disputes those arguments. In particular, it claims that Areva’s complaint, alleging defective reasoning, is inadmissible, since in reality Areva does not challenge the reasoning set out in the judgment but the General Court’s appraisal of the evidence, which is inadmissible in an appeal.

b) Analysis

64. It is appropriate, first of all, to ascertain, in the light of the criteria mentioned at points 47 to 53 above, whether, in the judgment under appeal, the General Court substituted its own grounds, as Areva and the Alstom group companies claim. Their arguments refer in particular to two factors – mentioned at point 59 above – which the General Court, at paragraph 150 of the judgment under appeal, is alleged to have added to the reasoning in the decision at issue. ( 45 ) For that purpose, I consider it necessary to begin with a detailed analysis of the judgment under appeal.

65. At paragraphs 144 to 152 of the judgment under appeal, the General Court rejected the plea whereby Areva and T&D Holding alleged that the Commission had breached the rules on the imputation of infringements in that it had attributed to them liability for the infringement for the period from 9 January to 11 May 2004, in their capacity as the parent companies holding the entire capital of Areva T&D SA and Areva T&D AG. Areva and T&D Holding maintained that the factors which they had set out during the administrative procedure were sufficiently probative to rebut the presumption of liability arising from the fact that the entire capital of the subsidiaries was held by their parent companies.

66. In order to reject that plea, the General Court, in the judgment under appeal, first of all analysed the decision at issue and referred to the relevant principles established in the case-law (paragraphs 144 and 145). Next, it considered that it was for Areva and T&D Holding to rebut the abovementioned presumption of liability (paragraph 146) and that it was thus necessary to consider whether the factual evidence submitted during the administrative procedure, which had again been raised before it, was of sufficient probative value to rebut the presumption of liability (paragraph 147). The General Court therefore recited the arguments put forward by Areva and T&D Holding during the administrative procedure and, in particular, the arguments relating to their lack of experience in the T&D sector (paragraph 148) and then concluded, at paragraph 149, for the reasons stated at paragraph 150, that those factors, taken individually, or even as a whole, were not such as to show that the subsidiaries determined their course of action on the market in a genuinely independent manner vis-à-vis Areva and T&D Holding and that, accordingly, the Commission had not vitiated the decision at issue with an error of assessment by rejecting that evidence as having no probative value.

67. More specifically, in order to reach that conclusion, the General Court relied, at paragraph 150 of the judgment under appeal, first, on the finding that the assertions of Areva and T&D Holding – according to which they did not have sufficient experience to exercise decisive influence over their subsidiaries – were unsupported and, second, on the consideration that it could not be inferred from those assertions that the two parent companies had necessarily refrained from exercising such influence. Those findings are not challenged in the parties’ arguments.

68. It is in that context and, in particular, in order to strengthen its argument that the General Court relied on the first argument to which Areva and T&D Holding refer, asserting that it was not ruled out that they could have acquired, or at least developed, their knowledge of the T&D sector during the negotiation initiated for the transfer of Alstom’s T&D activity. That additional consideration, which was undertaken by the General Court on the basis of information contained in the file, ( 46 ) and for the sole purpose of answering the argument raised before it by Areva and T&D Holding, seems to me, moreover, to be perfectly reasonable. It is clear that a group such as Areva will not undertake an operation of such a scale and importance without having acquired very precise information about the sector in question in order to assess the risks of such an operation.

69. Next, the General Court referred to the second argument put forward by Areva and T&D Holding, namely the question, already addressed at recital 370 to the decision at issue, relating to the appointment of the new member of Areva’s board of directors, who was also appointed chief executive of Areva T&D Holding, and also president of the T&D division and a member of Areva’s executive committee. In the light of that appointment, which, according to recital 370 to the decision at issue, was made 10 days after Areva’s acquisition of the subsidiaries in question, the General Court, in line with that recital to the decision at issue, considered at paragraph 150 of the judgment under appeal that, ‘[f]ar from showing the independence of [the subsidiaries] within the Areva group, the external recruitment of that new director proves, on the contrary, that, at the beginning of the period in question, Areva and Areva T&D Holding equipped themselves with an organisation which enabled them to exercise effective control over their wholly-owned subsidiaries which were active in the T&D sector and to influence, in a decisive manner, the conduct of those subsidiaries on the market’. The phrase to which Areva and T&D Holding refer, relating to the fact that it could not be ruled out that ‘that external recruitment allowed Areva and Areva T&D Holding to equip [themselves] with the expertise which had been lacking in the sector in question’ is merely a parenthetical observation designed to reinforce the rejection of the argument relating to the lack of experience in the T&D sector. That phrase cannot therefore in my view be regarded as a factor that is essential to supporting the reasoning of the judgment under appeal.

70. It follows from that detailed analysis of the judgment under appeal that, contrary to the contention of Areva and the Alstom group companies, in examining, at paragraphs 144 to 152 of the judgment under appeal, the factors relating to the alleged independence of the subsidiaries invoked before it, the General Court merely answered in detail the arguments raised before it and therefore exercised its power of review of the legality of the decision at issue without substituting its own reasoning for that applied by the Commission in that decision. ( 47 ) The complaint alleging unlawful substitution of the grounds must therefore, in my view, be rejected.

71. Areva further claims that there has been a breach of the obligation to state reasons, on the ground that the General Court’s reasoning concerning the alleged two new factors added to the decision at issue do not enable it to understand how those factors might justify the finding of actual exercise of decisive influence.

72. In that regard, and without there being any need to take a view on the question, raised by the Commission, of the admissibility of certain of Areva’s arguments, it is to my mind sufficient to observe that it follows from the analysis of paragraphs 144 to 152 of the judgment under appeal which I have just carried out at points 65 to 69 above that the two factors to which Areva refers do not constitute new factors introduced by the General Court to the basis of the decision at issue, but merely constitute additional reasoning in answer to the argument put forward by Areva both before the Commission and before the General Court, that Areva was not in a position actually to exercise decisive influence over its subsidiaries owing to its lack of experience in the T&D sector. Those arguments therefore do not serve as the basis of the finding of the actual exercise of decisive influence, as Areva claims.

73. Areva further claims that there has been a breach of its rights of defence. First, as regards the complaint that it was not given the opportunity to comment on the two alleged new arguments in question, it should be observed that, in so far as those arguments are merely additional to the reasoning developed in the judgment under appeal in response to the arguments raised by Areva itself, Areva cannot claim that the General Court was necessarily required to give it the opportunity to comment in that respect.

74. Second, as for the complaint which Areva derives from the fact that the General Court breached its rights of defence by imposing a probatio diabolica on it, I have already had occasion to observe that, given the nature of the presumption, which, by logical inference, makes it possible to infer proof of an unknown fact from a known fact, it seems logical that the person against whom it operates must, in principle, adduce negative proof of the presumed fact. The mere fact that such proof is required does not permit the conclusion that the presumption is irrebuttable, in particular where, as in our case, that proof must be sought in the sphere of activities of the person against whom the presumption operates. ( 48 ) It follows that Areva cannot claim that there has been a breach of its rights of defence in that the General Court required it to prove that it did not exercise decisive influence over its subsidiaries.

75. Third, as regards the criticism raised by Areva in its reply and referred to at point 61 above, it should be recalled that it follows from Articles 42(2) and 118 of the Rules of Procedure ( 49 ) that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. It must be stated that it was only at the stage of the reply that Areva raised this plea ( 50 ) and that the plea is not based on matters which came to light after the appeal was lodged. ( 51 ) Such a new plea, raised for the first time during the present procedure, is to my mind manifestly out of time and therefore inadmissible. ( 52 )

76. In the light of all of the foregoing, I consider that Areva’s first plea and the second part of the Alstom group companies’ second plea should be rejected.

4. The fourth part of the Alstom group companies’ second plea

77. In the fourth part of their second plea, the Alstom group companies claim that there is a failure to state reasons in the judgment under appeal in that paragraph 206 does not enable it to be understood, first, why the Commission was able, without stating reasons in the decision at issue in that regard, to impose fines on persons who no longer constitute an economic unit at the time of adoption of the decision at issue and, second, why the case-law which they had cited was not relevant.

78. In that regard, I have already explained in the context of the analysis of the second part of the Alstom group companies’ first plea, at points 40 to 42 above, the reasons why I consider that the Commission must not be criticised in the present case for not having provided specific reasons relating to the fact that the parent company and its subsidiary that had participated directly in the infringement were jointly and severally liable for payment of the fine, even though they no longer constituted an economic unit at the time of adoption of the decision at issue.

79. However, at paragraph 206 of the judgment under appeal the General Court did indeed explain that the Commission was able to impose a fine jointly and severally on companies which, at the date of adoption of the decision, no longer belonged to the same group, provided that joint and several liability for payment of the fine covered only the infringement period during which the companies formed an economic unit and therefore an undertaking for the purposes of competition law. The General Court also explained that it did not follow from the case-law – irrespective of whether that case-law was or was not cited by the parties – that only those companies which formed an economic unit on the date when the decision imposing the fine was adopted could have a fine imposed on them for which they were jointly and severally liable.

80. In those circumstances, the General Court did not breach its obligation to state reasons, and the fourth part of the second plea must in my view therefore also be rejected.

81. It follows from all of the foregoing that, to my mind, apart from the third part of the Alstom group companies’ second plea, which, as stated, will be analysed subsequently, that plea and Areva’s first plea should be rejected.

C – The Alstom group companies’ third plea, alleging infringement of Article 101 TFEU, and in particular of the rules governing the imputability of the infringement, and breach of the principles of the right to a fair trial and the presumption of innocence

82. In the context of their third plea, which is subdivided into two parts, the Alstom group companies claim that there has been an infringement of Article 101 TFEU and, in particular, of the rules governing the imputability to a parent company of the practices of its subsidiary, and also a breach of the principles of the right to a fair trial and the presumption of innocence enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union and guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

1. First part, relating to the imposition of a probatio diabolica vis-à-vis Alstom

83. In the context of the first part of this plea, which relates to paragraphs 84 to 110 of the judgment under appeal, the Alstom group companies, in an attempt to call into question the Court’s case-law on the imputation to the parent company of the infringements committed by its subsidiary, and in particular the presumption based on the ownership of the capital, take issue with the General Court for having applied that presumption in a way that rendered it irrebuttable by requiring the parent company to establish a probatio diabolica in order to rebut it. To infer, as the General Court did at paragraph 110 of the judgment under appeal, the actual exercise of decisive influence from the mere existence of organisational, economic and legal links between the parent company and one of its subsidiaries and not from specific facts linked to particular actual conduct on the relevant market exceeds the limits of what is reasonable by making the presumption based on the ownership of the capital irrebuttable and thus imposing a probatio diabolica. According to the Court’s case-law, the Commission cannot merely refer to links inherent in the existence of a group, but must establish the actual interference of the parent company on the relevant market. It is necessary, in that regard, to show that the structural links were actually used to influence the subsidiary’s conduct on the market. The right to a fair trial and the presumption of innocence are seriously affected by such an application of the presumption based on the ownership of the capital.

84. This part of the Alstom group companies’ third plea is in my view based on a misreading of the judgment under appeal.

85. It is apparent from paragraph 103 of the judgment under appeal that the General Court found that the documents produced by Alstom during the administrative procedure proved that ‘the management of the Alstom group, under the responsibility of Alstom, took part in defining the course of action on the market in relation to the Alstom Group’s “T&D division” and its various branches of activity, and that it permanently supervised compliance with that course of action by that division and its different branches of activity’.

86. The Alstom group companies cannot therefore claim that the General Court ‘merely’ had regard solely to the organisational, economic and legal links, and did not consider the parent company’s actual interference on the relevant market, in order to infer that the parent company exercised decisive influence over the subsidiaries in question.

87. In that regard, it should also be observed that, according to settled case-law, the organisational, economic and legal links between the parent company and its subsidiary have a central role in determining the subsidiary’s independence of its parent company and whether the parent company has adduced sufficient evidence to rebut the presumption based on the ownership of the capital. ( 53 )

88. While it is clear that the exercise of decisive influence refers to the conduct of the subsidiary on the market affected by the infringement, it does not follow from the case-law that the Commission is required to prove, as the Alstom group companies claim, that the structural links were actually used to influence that conduct in order to be able to impute, on the basis of the presumption based on ownership of the capital, the subsidiary’s conduct to the parent company. To recognise such an obligation would be tantamount to depriving the presumption of its utility. Rather, it is for the parent company to prove that, in spite of the organisational, economic and legal links between it and its subsidiary, the latter independently determined its conduct on the market.

89. As for the Alstom group companies’ argument that the presumption of the actual exercise of decisive influence runs counter to the principles of the right to a fair trial and the presumption of innocence, it is sufficient to recall that it has consistently been held that that presumption is specifically intended to strike a balance between the importance, on the one hand, of the objective consisting in punishing conduct contrary to the competition rules and, on the other, the requirements of certain general principles of Union law, such as, inter alia, the principle of the presumption of innocence. It is for that reason that it is rebuttable. ( 54 ) Furthermore, the mere fact that an entity does not, in a given case, produce evidence capable of rebutting the presumption of actual exercise of decisive influence does not mean that that presumption cannot be rebutted in any circumstances. ( 55 )

90. It follows from all of the foregoing that, in my view, the first part of the Alstom group companies’ third plea must be rejected.

2. Second part, relating to an error of law in the determination of the actual exercise of decisive influence by Areva T&D Holding over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004

91. By the second part of its third plea, T&D Holding takes issue with the General Court, ‘on the basis of the same principles as those developed in the first part’, for having erred in law in upholding, at paragraphs 144 to 152 of the judgment under appeal, the decision at issue in that it found that Areva T&D Holding did in fact exercise decisive influence over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004. T&D Holding maintains that, in order to justify the Commission’s finding, the General Court relied on the two factors put forward by Areva, in the context of its first plea and mentioned at point 59 above. In particular, the conclusion which the General Court draws from Areva’s appointment of a new director of Areva T&D Holding, who was also a manager of Areva T&D SA and Areva T&D AG, namely that it cannot be ruled out that the external recruitment of that new director enabled Areva to equip itself with expertise in the sector under consideration, is a hypothetical scenario without legal basis. That conclusion disregards the facts submitted before the General Court, as it is common ground that that new director had no previous links with the Areva group and, in particular, that he had no knowledge of the sector concerned. It follows that the General Court considered that Areva T&D Holding was required to adduce negative proof of non-interference in the conduct of its subsidiaries, which is tantamount to a probatio diabolica and rendered the presumption based on the ownership of the capital irrebuttable.

92. In fact, this second part of the Alstom group companies’ third plea merely reiterates certain of the arguments put forward by Areva in the context of its first plea, which was analysed – and rejected – at points 59 to 76 above.

93. In particular, as regards the developments relating to the probatio diabolica, I refer to the considerations which I set out at point 74 above.

94. As for the fact that the General Court, at paragraph 150 of the judgment under appeal, referred to the fact that the Areva group could have equipped itself with the necessary expertise in the T&D sector by recruiting a new director, I have already observed, at point 69, that this was an additional reason designed solely to reinforce the argument that, without knowledge of the sector, Areva T&D Holding could not in fact exercise decisive influence over its subsidiaries after 9 January 2004, a finding which was based on other evidence.

95. It follows that the General Court did not err in law in upholding, at paragraphs 144 to 152 of the judgment under appeal, the decision at issue in that it found that Areva T&D Holding actually exercised decisive influence over Areva T&D SA and Areva T&D AG during the period from 9 January to 11 May 2004 and that, accordingly, the second part of the Alstom group companies’ third plea, and thus that plea in its entirety, must be rejected.

D – The fourth plea and the third part of the second plea of the Alstom group companies and Areva’s second and third pleas, alleging errors of law and breaches of law and also breaches of the obligation to state reasons concerning the application of the rules on joint and several liability for payment of the fine

96. The fourth plea and the third part of the second plea of the Alstom group companies, and Areva’s second and third pleas, alleging a number of errors of law, breaches of law and breaches of the obligation to state reasons by the General Court, all have in common the fact that they relate, even from different aspects, to the application and interpretation of the rules on joint and several liability for payment of the fine imposed for the infringement. In the context of these pleas, the Commission has, moreover, raised objections of inadmissibility and requests for substitution of grounds which are largely similar. In the light of those considerations, I consider it appropriate to analyse these complaints and pleas together.

97. The complaints which the parties raise against the judgment under appeal may be subdivided, essentially, into two groups. In the first group of complaints, the appellants take issue with the General Court for having made a number of errors and breaches of law in establishing ‘de facto joint and several liability’ between the two successive parent companies, Areva and Alstom. In particular, they maintain that the establishment of that de facto joint and several liability entails a breach of the principle of legal certainty and the principle that the penalty must be specific to the offender and the offence. In a second group of complaints, the appellants ask that the General Court be censured for having made a number of errors of law in the interpretation and application of the rules on joint and several liability that entail a breach of the principles referred to above, an infringement of Article 7 EC ( 56 ) and also a breach of the obligation to state reasons.

1. The judgment under appeal

98. The General Court rejected the pleas and complaints alleging breach of the principle of legal certainty at paragraphs 209 to 218 of the judgment under appeal, the pleas and complaints alleging breach of the principle that the penalty must be specific to the offender and the offence at paragraphs 219 to 222 of that judgment and the pleas and complaints relating to the unlawful delegation of power contrary to Article 7 EC at paragraphs 232 to 237 of the judgment under appeal. The General Court thus concluded that the Commission had not breached the rules on joint and several liability for payment of fines. Next, when varying the fine in the exercise of its unlimited jurisdiction, the General Court, at paragraphs 318 to 323 of the judgment under appeal, upheld the model of joint and several liability for payment of the fine used by the Commission. ( 57 )

99. In particular, at paragraphs 213 to 216 of the judgment under appeal, the General Court rejected the plea alleging breach of the principle of legal certainty interpreted as an objection of illegality against the rules on joint and several liability for payment of the fines in that those rules were the source of uncertainty as to payment of the fine, the determination of the person responsible for payment and the legal situation of those jointly and severally liable. To that end, the General Court first of all observed that a decision by which the Commission imposes a fine for which a number of companies are jointly and severally liable necessarily produces all the effects which, as a matter of law, apply to the legal rules for the payment of fines in competition law, and does so both in the relationship between the creditor and those jointly and severally liable and in the relationships between the jointly and severally liable persons themselves.

100. Next, the General Court considered that, in the absence of a contrary indication in the decision by which the Commission has imposed a fine jointly and severally on a number of companies for an infringement by an undertaking, that decision attributes that infringement to them in equal measure. It follows, according to the General Court, that companies which are jointly and severally liable to pay a fine and which, unless otherwise specified in the decision imposing the fine, incur liability in equal measure for the infringement must, in principle, contribute in equal amounts to the payment of the fine imposed on account of that infringement (‘the equal liability rule’). Consequently, the company from which the Commission recovers the entire amount of the fine may, according to the General Court, on the actual basis of the Commission decision, make a claim for recovery against each of the other jointly and severally liable undertakings in respect of its share. On the basis of that equal liability rule, the General Court concluded that, even if the decision by which a number of companies are held jointly and severally liable for payment of a fine does not enable it to be determined from the outset which of those companies will actually be required to pay the fine to the Commission, it does not prevent each of those companies from knowing, unambiguously, the share of the fine which will be its own share, or from bringing an action against the other jointly and severally liable companies for recovery from them of the amounts which it has paid in excess of its share.

2. The establishment of joint and several liability between Areva and Alstom

a) Arguments of the parties

i) Arguments of Areva and the Alstom group companies

101. In the context of its second and – in part – its third pleas, Areva claims that the General Court made an error of law in the application of the rules on joint and several liability for payment of the fines, first, by not having penalised the Commission for having established de facto joint and several liability between Areva and Alstom, two companies which have never formed together a common economic unit, and, second, by itself imposing, in the exercise of its unlimited jurisdiction, fines having the effect of establishing such joint and several liability. That error of law has as its consequence a breach of the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence.

102. In the second part of their fourth plea, the Alstom group companies also claim that the General Court breached the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence in that it did not challenge the application of joint and several liability as made by the Commission, which gave rise to the establishment of de facto joint and several liability between Alstom and Areva, two companies which have never constituted an economic unit between them. That de facto joint and several liability follows, first, from the fact that the amount of EUR 25 500 000 (reduced to EUR 20 400 000 by the General Court) imposed jointly and severally on Areva and its former subsidiaries forms part of the amount of EUR 53 550 000 (reduced to EUR 48 195 000 by the General Court) imposed jointly and severally on Alstom and Areva T&D SA and, second, from the fact that the sum of the maximum amounts for which the successive parent companies are held liable exceeds the amount payable by the subsidiary. In those circumstances, irrespective of what interpretation is put on the decision at issue, payment of the fine by one of the groups has a direct impact on the debt of the companies in the other group although those groups have never formed the same economic unit.

103. However, as the General Court held in Trioplast, ( 58 ) the imposition of joint and several liability, even if it is only ‘de facto’ joint and several liability, between companies which have never belonged to the same undertaking is contrary to both the principle that a penalty must be specific to the offender and the offence, since, in such a situation, an undertaking would be penalised for facts of which it is not individually accused, and the principle of legal certainty, since the parent companies could not know, unambiguously, the precise amount that each of them must pay in respect of the period during which it was held jointly and severally liable with its subsidiary for the infringement. In addition, the equal liability rule advocated by the General Court, ( 59 ) even if it did exist, which the appellants dispute, could not explain the solution reached by the General Court in the judgment under appeal. Even if the fine were shared in equal parts between the undertakings jointly and severally liable, the amount actually recovered from one of the parent companies would still depend on the amount recovered from the other companies.

104. Last, the appellants challenge the objection of inadmissibility raised by the Commission. Areva maintains that it has added no new matter to the complaints raised before the General Court and that, quod non, it would only have put forward new arguments (and not new pleas in law) to support the plea alleging breach of the rules on joint and several liability submitted at first instance. In any event, between the action before the General Court and the appeal before this Court, new matters both of fact and of law have come to light, ( 60 ) which in themselves are sufficient to explain why these arguments were raised only during the proceedings. The Alstom group companies maintain that, although the expression ‘de facto joint and several liability’ was not used at first instance, that joint and several liability was mentioned on a number of occasions in Alstom’s pleadings and was discussed before the General Court. They refer to the first and second pleas put forward before the General Court, to the Commission’s pleadings and to the oral submissions of Alstom’s representatives at the hearing. The argument relating to de facto joint and several liability is therefore not a new plea, but merely expands on a plea already raised before the General Court.

ii) Arguments of the Commission

105. The Commission contends that both Areva’s second plea and the second part of the Alstom group companies’ fourth plea are inadmissible, as new pleas which alter the subject-matter of the dispute before the General Court. It is apparent from paragraphs 192 and 195 of the judgment under appeal and from Areva’s and Alstom’s pleadings before the General Court that their arguments related to different questions, which made no reference to any de facto joint and several liability between the parent companies Alstom and Areva. The arguments submitted to the General Court related only to the de jure and not de facto joint and several liability between Areva T&D SA and the successive parent companies, so far as Areva was concerned, and the joint and several liability between Areva T&D SA and the earlier parent company Alstom, so far as the Alstom group companies were concerned.

106. As regards the substance, the Commission contends that the fact that a fine was imposed jointly and severally on Areva T&D SA and the other companies of the Areva group although that company was also held jointly and severally liable with Alstom may be explained by the simple fact that the company in question was a subsidiary which had participated in an infringement under the control of two successive parent companies. The transfer of that subsidiary led to a situation of double joint and several liability, the subsidiary being jointly and severally liable with each of its parent companies. It does not follow, however, that Areva and Alstom are held jointly and severally liable. Furthermore, the approach of ascribing to a parent company the same starting amount as that attributed to a subsidiary participating directly in a cartel, without dividing up that starting amount where there are several successive parent companies, cannot in itself be considered inappropriate. ( 61 )

107. The Commission submits that it follows that, in the present situation, where the subsidiary Areva T&D SA is held jointly and severally liable with its two successive parent companies, a full starting amount identical to the starting amount of the subsidiary could be imposed on each of those two companies, and that amount was subsequently multiplied by the individual duration of the infringement each of the addressees and the aggravating circumstance based on the role of leader of the infringement. That resulted in three different amounts of the fine for the companies in question. Although there are a number of possible methods of defining joint and several liability, the Commission, in the exercise of its discretion, chose to require a single starting amount for which the three companies were jointly and severally liable, and in doing so applied what was the most advantageous of the available methods for the parent companies in question.

108. Next, although in its view the General Court’s conclusion that there was no breach of the principle of legal certainty or the principle that a penalty must be specific to the offender and the offence should be upheld, the Commission none the less asks the Court to substitute other reasons for the reasons stated by the General Court at paragraphs 213 to 215 of the judgment under appeal in order to arrive at that conclusion. The Commission maintains that, contrary to the General Court’s finding, it is not competent to decide on the respective contributions to payment of a fine in the relationship between the different jointly and severally liable undertakings. Although the method of organising joint and several liability applied in the present case entails an overlap of the amounts payable by Areva and Alstom, that does not make those companies directly and strictly jointly and severally liable with each other. What matters in law is the joint and several liability of each parent company with the transferred subsidiary. The fact that the number the subsidiary’s joint and several links is increased where it is sold during the infringement period does not alter the legal nature of the individual relationship between that subsidiary and each of its parent companies. In such a situation of ‘de facto’ joint and several liability between a subsidiary’s successive parent companies, the same considerations which, according to the case-law, form the basis of joint and several liability by agreement between a parent company and a subsidiary is applicable.

b) Analysis

i) Admissibility

109. It is appropriate, first of all, to analyse the objection of inadmissibility raised by the Commission against the complaints relating to the establishment of de facto joint and several liability between Areva and Alstom. The Commission contends, in essence, that those complaints were put forward only at the stage of the appeal and thus constitute new pleas in law that change the subject-matter of the proceedings before the General Court and are thus inadmissible.

110. In that regard, it should first of all be borne in mind that, under the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal to the Court of Justice is to be limited to points of law and may lie on grounds of, inter alia, infringement of European Union law by the General Court.

111. Furthermore, Article 113(2) of the Rules of Procedure of the Court of Justice ( 62 ) provides that the subject-matter of the proceedings before the General Court may not be changed in the appeal.

112. It follows from a consistent line of decisions that the jurisdiction of the Court of Justice is in principle confined to review of the findings of law on the pleas argued before the General Court. ( 63 ) Therefore, a party cannot in principle put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court because that would amount to allowing the Court of Justice to review the legality of the findings of the General Court, in the light of pleas of which the latter did not have occasion to hear and determine. ( 64 )

113. However, a new argument which merely develops or expands on the argument presented before the General Court is not a new plea, but must be regarded as the lawful extension of a plea already raised at an earlier stage in the proceedings. ( 65 ) Such an argument is therefore admissible. ( 66 )

114. In this case, I must first of all state that, before the General Court, neither Areva nor the Alstom group companies expressly raised a complaint alleging that the establishment of de facto joint and several liability between Areva and Alstom breached the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence, as they have done in their appeals. In their applications at first instance they put forward pleas alleging breach of the rules on joint and several liability, but did so exclusively in relation to the establishment of de jure joint and several liability between the parent companies (Alstom and Areva, respectively) and the subsidiary (Areva T&D SA) and not in relation to the creation of de facto joint and several liability between the two successive parent companies. Thus, although they attempt to show that these complaints do not constitute new matters, to my mind it is clear that, on the contrary, they do.

115. The fundamental question to arise here is, therefore, whether these new complaints must be characterised as a new plea that changes the subject-matter of the proceedings, as the Commission maintains, or whether they develop or expand on pleas put forward before the General Court, as Areva and the Alstom group companies maintain.

116. I have already had occasion to observe that the distinction between an (admissible) new argument and an (inadmissible) new plea is a delicate question on which the approaches taken in the case-law are not always consistent. ( 67 ) Likewise, I have also observed that a complaint which is raised on a legal basis other than the pleas put forward before the General Court must be regarded as a new plea which must be declared inadmissible, whereas a complaint put forward in support of a plea already raised before the General Court may, depending on the case, constitute an admissible argument. ( 68 )

117. In this case, as regards, in the first place, Alstom, it should be observed that, before the General Court, it had raised a plea, the second, alleging, as in its appeal, breach of the rules on joint and several liability entailing a breach of the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence. It is true that, before the General Court, in the context of that plea, Alstom did not refer expressly to the establishment of de facto joint and several liability between the successive parent companies, but asked that Court to censure the imposition of a relationship of joint and several liability between it and Areva T&D SA, companies which no longer constituted an economic unit at the time of the adoption of the decision. However, it must be stated that, in the context of the complaint alleging breach of the principle that a penalty must be specific to the offender and the offence, Alstom expressly disputed the fact that the amount of EUR 25 500 000 of the fine imposed on Areva and its former subsidiaries formed an integral part of the amount of EUR 53 550 000 of the fine imposed jointly and severally on Alstom and Areva T&D SA, maintaining that such a joint and several apportionment of the debt between those jointly and severally liable for the fine entailed a breach of the principle that a penalty must be specific to the offender and to the offence. ( 69 ) That specific question was then also raised at the hearing before the General Court, as is apparent from Alstom’s assertions, which are not disputed by the Commission.

118. It is precisely that linking of the fine imposed jointly and severally on Areva and its former subsidiaries with the fine imposed jointly and severally on Alstom and Areva T&D SA that gives rise to the ‘de facto’ joint and several liability between Areva and Alstom that is challenged in the appeals. Furthermore, in the context of the complaint alleging breach of the principle of legal certainty raised in the same plea at first instance, Alstom expressly relied on the uncertainty as to the enforcement of the penalty involved in the Commission’s application of the rules on joint and several liability. ( 70 )

119. It must therefore be stated that, even though Alstom did not specifically raise before the General Court, as it did on appeal, a complaint that the establishment of de facto joint and several liability, ( 71 ) described in those terms, between Alstom and Areva, entailed a breach of the principle that a penalty must be specific to the offender and the offence and the principle of legal certainty, it had, none the less, expressly claimed, in the context of a plea raised on exactly the same basis as the plea raised on appeal, that the premiss from which that de facto joint and several liability arises, namely the linking of the two fines imposed jointly and severally between the subsidiary and the successive parent companies, entailed such a breach of those principles.

120. In those circumstances, I consider that the complaints put forward by Alstom in its appeal cannot be regarded as changing the subject-matter of the proceedings in such a way that they must be deemed inadmissible. Rather, those complaints develop the complaints raised before the General Court. To my mind, therefore, they must be considered to be admissible so far as Alstom is concerned.

121. So far as Areva is concerned, on the other hand, the situation is somewhat different. At first instance, it, like Alstom, raised a plea (the fourth) alleging breach of the rules on joint and several liability, which referred expressly only to the fact that a penalty was imposed on Areva T&D SA jointly and severally with Alstom and not to the establishment of joint and several liability between the successive parent companies. In the context of that plea, Areva claimed that the misapplication of the rules on joint and several liability had entailed a breach of the principle of legal certainty, ( 72 ) but it did not raise, in that context, a complaint alleging breach of the principle that a penalty must be specific to the offender and the offence. Unlike in Alstom’s case, moreover, it does not follow from Areva’s written pleadings that before the General Court Areva expressly challenged in the context of that plea the fact that its fine formed an integral part of the fine imposed jointly and severally on Alstom and Areva T&D SA. In Areva’s case, therefore, the link between the plea raised at first instance and the new complaint put forward on appeal is weaker than in Alstom’s case.

122. In the present case, however, first, Areva raised at first instance a plea resting, at least in part, on the same legal basis as that raised in its appeal, namely a plea alleging breach of the principle of legal certainty in the application of the rules on joint and several liability. Second, in the context of its argument alleging breach of the rules on joint and several liability, ( 73 ) it referred to questions relating to the link established between it and Alstom for the purpose of imposing a penalty for which, first, it and Areva T&D SA and, second, Alstom and Areva T&D SA, were jointly and severally liable. Third, as is apparent from point 101 above, Areva, unlike Alstom, expressly asked this Court to condemn the application of the rules on joint and several liability by the General Court itself, in that they had the effect of establishing ‘de facto’ joint and several liability. In that regard, it follows from the case-law that an applicant may lodge an appeal relying, before the Court of Justice, on pleas arising from the judgment under appeal itself and seeking to criticise, in law, its merits. ( 74 ) Fourth, it should further be observed that the question of the linking of two fines imposed jointly and severally was, as I stated at points 117 and 118 above, relied on by Alstom before the General Court, so that that question was therefore not wholly alien to the dispute before that Court, and, furthermore, that the General Court joined the two cases and delivered a single judgment which addresses all the pleas raised by the parties before it. ( 75 )

123. In those special conditions, I consider that the complaint alleging that the establishment of de facto joint and several liability between Areva and Alstom constitutes a breach of the principle of legal certainty may be regarded as not being capable of changing the subject-matter of the proceedings as defined before the General Court. Conversely, as it was not raised at first instance by Areva or by its former subsidiaries that were also applicants before the General Court (now subsidiaries of Alstom and joint appellants with Alstom in Case C‑253/11 P), the complaint alleging breach of the principle that a penalty must be specific to the offender and the offence must to my mind be considered inadmissible in their case.

ii) Substance

124. Both Areva and the Alstom group companies take issue with the General Court, in essence, for having breached the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence in upholding the Commission’s application of the rules on joint and several liability, which gave rise to the establishment of de facto joint and several liability between Areva and Alstom, two companies which have never constituted a unitary economic entity.

125. In that regard, it should be borne in mind, first of all, that the principle of legal certainty is a general principle of European Union law which requires, in particular, that any act of the EU institutions be clear and precise and enable those concerned to ascertain precisely what their rights and obligations are and to take steps accordingly. ( 76 ) That principle must be observed all the more strictly in the case of an act liable to have financial consequences, in order that the person concerned can ascertain precisely the extent of the obligations which it imposes on him. ( 77 )

126. It should also be borne in mind that the principle that a penalty must be specific to the offender and the offence, which is a corollary of the principle of personal responsibility applicable in any administrative procedure in which penalties may be imposed under competition law, ( 78 ) requires that a person is penalised only in respect of acts of which he is individually accused. Thus, under that principle, only the perpetrator can be charged in respect of unlawful conduct ( 79 ) and, consequently, a penalty cannot be incurred by anyone other than the offender. ( 80 )

– The establishment of de facto joint and several liability

127. In the present case, the Commission and, following the variation of the fine, the General Court, imposed on Alstom a fine of EUR 53 550 000 (reduced by the General Court to EUR 48 195 000) and held Areva T&D SA liable for payment of the entire amount of that fine. Of the amount imposed on Areva T&D SA, Areva and its two other former subsidiaries are held jointly liable with Areva T&D SA for the amount of EUR 25 500 000 (reduced to EUR 20 400 000 after the fine was varied by the General Court). The transferred subsidiary, Areva T&D SA, is therefore held jointly and severally liable for payment of its fine with both its former and its new parent company.

128. In that regard, it should be observed that it is common ground that Areva and Alstom have never constituted a unitary economic entity and therefore, together, an undertaking for the purposes of competition law. In this instance, it is the subsidiary, namely Areva T&D SA, that constituted a unitary economic entity with, successively, Alstom, during the period from 7 December 1992 to 8 January 2004, and Areva and its former subsidiaries, from 9 January to 11 May 2004. It is for that reason that the Commission and subsequently the General Court imposed a penalty for which the subsidiary was de jure jointly and severally liable with its successive parent companies. The Commission and the General Court did not establish de jure joint and several liability between the parent companies themselves.

129. In accordance with the specific objective of joint and several liability, ( 81 ) the Commission is free to recover the fine from either of the legal persons concerned according to their capacity to pay. Thus, according to the model of joint and several liability as referred to at point 127 above, the Commission is free to demand payment of all or part of the fine from the subsidiary or from one or other of the parent companies that successively controlled it, until the fine has been paid in full.

130. However, it is clear that, in such a model of joint and several liability, recovery of the fine from one of the parent companies necessarily has an impact on recovery from the other. Thus, if the Commission obtains from Alstom payment of the entire fine, the subsidiary (Areva T&D SA, now Alstom Grid SAS) will be entirely released from the obligation to pay its fine vis-à-vis the Commission and, consequently, Areva and its other former subsidiaries, jointly and severally liable for the debt with Areva T&D SA, will also be released from their obligation vis-à-vis the Commission. Conversely, if the Commission obtains payment of the fine from Areva, the subsidiary and the person with whom it is jointly and severally liable, Alstom, will be released up to the amount paid to the Commission by Areva.

131. It is to such ‘de facto’ joint and several liability that Alstom and Areva refer.

– Breach of the principle that a penalty must be specific to the offender and the offence and the principle of legal certainty

132. Does such a model of the relationship of joint and several liability between the legal persons found to have infringed the competition rules, which entails the establishment of de facto joint and several liability between parent companies, which have never constituted a unitary economic unit, amount to a breach of the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence?

133. In this instance, first, the application of the rules on joint and several liability made by the Commission and upheld by the General Court would entail a breach of the principle that a penalty must be specific to the offender and the offence, as referred to at point 126 above, if, in the abovementioned model of joint and several liability, the legal person from whom the Commission recovers the fine were required to pay a fine for punishable acts which are not imputable to the undertaking for which it is required to answer for the infringement and, in particular in the present case, for punishable acts committed during a period for which the legal person in question could no longer (or could not yet) be required to answer for the unlawful conduct, because it was no longer (or was not yet) part of the unitary economic entity responsible for that conduct.

134. Second, a breach of the principle of legal certainty would arise if the model of joint and several liability chosen in the decision at issue and upheld in the judgment under appeal had the consequence that those concerned, namely the legal persons penalised for the unlawful conduct imputed to the economic unit to which they belonged, could not ascertain accurately and unambiguously the extent of the obligations which the acts of the institutions, namely the decision at issue and, in that it upholds the model of joint and several liability, the judgment under appeal, imposed on them.

135. In the present case, as I observed at point 128, Areva and Alstom have constituted a unitary economic entity and therefore never constituted together an undertaking for the purposes of competition law. On the other hand, the successively formed, with the subsidiary Areva T&D SA, two distinct economic entities, each of which is individually liable for the cartel during different periods and on different conditions.

136. In addition, it must be stated that, in this case, the liability of each of the parent companies arises wholly from that of the subsidiary, so that, in so far as the Commission chose in the exercise of its discretion ( 82 ) to order the parent company to pay the fine jointly and severally with the subsidiary, the parent company’s liability cannot exceed that of the subsidiary. ( 83 ) In those circumstances, the amounts established by the Commission as against the parent companies constitute maximum amounts at which the respective joint and several liability of each of the successive parent companies with the subsidiary is determined. ( 84 )

137. Admittedly, as the General Court observed at paragraph 220 of the judgment under appeal for Alstom, the decision at issue held the parent companies personally liable for the infringement.

138. However, in a case such as this, where the two parent companies never formed together an economic entity and the Commission decided to hold them jointly and severally liable with the subsidiary, the principle that a penalty must be specific to the offender and the offence requires that the fine payable by each of them does not exceed the share of its joint and several liability. That share corresponds to the proportion attributed to each of the parent companies of the total amount which the subsidiary is ordered to pay jointly and severally with the successive parent companies. ( 85 )

139. In this case, the model of joint and several liability as chosen by the Commission and upheld by the General Court is problematic in that respect. In the absence of correspondence between the amount of the fine which the subsidiary, Areva T&D SA, is ordered to pay and the amounts of the fines which the successive parent companies are ordered to pay jointly and severally with the subsidiary, it is impossible to determine what amount corresponds to the individual liability of each of the distinct economic entities, referred to at point 135. On the contrary, it follows from that situation, on the one hand, that the first of those entities (consisting of Alstom and Areva T&D SA) must answer for the whole fine, even though it did not commit the infringement throughout the entire period in respect of which the fine is imposed (namely the period between 7 December 1992 and 11 May 2004) and, on the other, that the liability of the second entity (composed of Areva T&D SA, Areva and the other former subsidiaries of Areva) significantly exceeds the share of the amount of the fine imposed for the entire infringement during the period in question. To my mind, such a situation is not compatible with the principle that a penalty must be specific to the offender and the offence.

140. Furthermore, in so far as the parent companies are not in a position to determine unambiguously the precise amount of the fine which they must pay for the period in respect of which they are held jointly and severally liable with their subsidiary, a breach of the principle of legal certainty must also be found.

141. In reality, the problems seem to me to be the consequence of the fact that, in the decision at issue, the Commission treated the Areva group and the Alstom group as a unitary entity when it began to calculate the fine. ( 86 ) In that regard, and without there being any need to adopt a position specifically on that point, I observed that the fact, put forward by the Commission, that the General Court, in Trioplast, considered that the approach consisting in attributing to a parent company the same starting amount as that taken for the subsidiary that had participated directly in the cartel without that amount being apportioned where there has been a succession of parent companies over time, cannot be regarded as inappropriate is in itself immaterial. First, it is not the method used in calculating the fine that is at issue in the present appeals, but the application of the rules on joint and several liability. Second, that argument is ineffective, since even if that method were not incorrect in itself, that would not alter the fact that in this case the model of joint and several liability chosen by the Commission and upheld by the General Court entails a breach of the principle that a penalty must be specific to the offender and the offence and the principle of legal certainty.

142. It should also be observed that the uncertainty cannot be dispelled by the rule of liability in equal measure established by the General Court at paragraph 215 of the judgment under appeal and referred to at point 100 above.

143. First, as I stated at points 88 and 89 of my Opinion in Commission v Siemens Österreich and Others, and as I shall describe at point 155 et seq., it is not established that such a rule exists in EU competition law.

144. Second, and in any event, even if that rule did exist, it would not be capable of dispelling the uncertainty resulting from the model of joint and several liability adopted in the present case. Its application in the present case seems to me to entail the risk that the total amount of the fine for which a legal person is actually liable would depend on the Commission’s discretionary choice as to the debtor in respect of which it intends to recover the fine. That amount could vary depending on whether the Commission chose to recover the fine from one ( 87 ) or the other ( 88 ) persons held liable, which seems to me to be unacceptable in general and, in particular, in a situation in which the undertakings held jointly and severally liable for the fine have never belonged to a unitary economic entity.

145. As for the Commission’s request that the Court should substitute grounds, in so far as it seeks to challenge the Commission’s competence to determine the internal relationship between those jointly and severally liable for the fine, I consider that it should be rejected, for the reasons set out at points 160 to 163, 169 and 173 below, and also, in greater detail, in the analysis of the Commission’s first and second pleas in law in Commission v Siemens Österreich and Others, set out at points 42 to 91 of my Opinion in that case. For the remainder, more than a true request for the substitution of grounds, the Commission seems to me to put forward arguments designed to challenge the complaints raised by the appellants. In the light of the foregoing considerations, those arguments must, however, be rejected.

146. It follows from all of the foregoing that, in my view, the complaints alleging an error of law in the application of the rules on joint and several liability, entailing a breach of the principle of legal certainty and a breach of the principle that a penalty must be specific to the offender and the offence, in relation to the establishment of de facto joint and several liability between Areva and Alstom must be upheld, on the understanding that the complaint alleging breach of the principle that a penalty must be specific to the offender and the offence is, as stated at point 123 above, inadmissible in Areva’s case.

3. The misapplication of the rules on joint and several liability entailing a breach of the principle of legal certainty and the principle that a penalty must be specific to the offender and the offence, an infringement of Article 7 EC and a breach of the obligation to state reasons

a) Arguments of the parties

i) Arguments of Areva and of the Alstom group companies

147. In the context of Areva’s third plea and the first part of the fourth plea, the last complaint in the second