EN Official Journal of the European Union C 205/19

Appeal brought on 8 June 2009 by ArcelorMittal Luxembourg SA against the judgment of the Court of First Instance (Seventh Chamber) delivered on 31 March 2009 in Case T-405/06 ArcelorMittal Luxembourg SA and Others v Commission.

(Case C-201/09 P)

2009/C 205/33

Language of the case: French

Parties

Appellant: ArcelorMittal Luxembourg SA formerly Arcelor Luxembourg SA (represented by: A. Vandencasteele, lawyer)

Other parties to the proceedings: Commission of the European Communities, ArcelorMittal Belval & Differdange, formerly Arcelor Profil Luxembourg SA, ArcelorMittal International, formerly Arcelor International SA

Form of order sought

— Set aside the judgment of the Court of First Instance in Case T-405/06 to the extent that it upholds, in relation to ArcelorMittal Luxembourg SA, Commission Decision C(2006) 5342 final of 8 November 2006 relating to a proceeding under Article 65 [CS] concerning agreements and concerted practices engaged in by European producers of beams (Case COMP/F/38.907 — Steel beams);

— Order the defendant to pay the costs of the present proceedings and of the proceedings before the Court of First Instance.

Pleas in law and main arguments

In support of its forms of order, the appellant relies on four grounds of appeal.

In its first ground of appeal, which has two parts, the appellant claims, first, that the Court of First Instance infringed Article 97 CS and misused its powers by applying Article 65 CS after the expiry of the ECSC Treaty on 23 July 2002. The obligation on the institutions to interpret the various treaties consistently cannot in any circumstances justify the retention in the Community legal order of the provisions of a treaty after its expiry.

In the second part of that ground of appeal, the appellant claims that the Court of First Instance infringed Regulation No 1/2003 (1) and misused its powers by holding that the legal basis for the Commission’s adoption of a decision under Article 65 CS was a regulation which confers powers on the Commission only in relation to the implementation of Articles 81 and 82 EC. Adopted after expiry of the ECSC Treaty under the EC Treaty alone, that regulation could not confer on the Commission any powers to impose penalties for a contravention of Article 65 CS, unless both the ECSC Treaty and the rule of the hierarchy of norms were to be disregarded.

In its second ground of appeal, which has three parts, the appellant claims that the Court of First Instance fails to observe the principle that penalties must fit the offence, the case-law of the Court of Justice on attribution of responsibility, the principle of res judicata and the rule of the hierarchy of norms, in that the Court of First Instance held that the Commission was entitled to attribute to one company responsibility for an anti-competitive practice of another member of a group, in which the former company had no part. Neither the fact that the various companies in question, belonging to the same group, were a single economic unit, nor the fact that the parent company had 100 % control of the subsidiary which committed the offence, nor even the fact that the influence of the parent company on its subsidiary was decisive, was sufficient to prove that the appellant had any part in the offence and therefore could not justify the attribution of responsibility for the conduct of the subsidiary to the parent company.

In its third ground of appeal, the appellant claims that the Court of First Instance incorrectly applied the rules relating to the limitation period of proceedings and failed to observe the principle of res judicata, in that the Court of First Instance, in its judgment, found that the appellant had committed acts which interrupted the limitation period, when it was very clear from the Commission’s original decision, adopted in 1994, that the appellant was expressly identified as having not taken part in the offence.

In its fourth ground of appeal, the appellant claims lastly that the judgment of the Court of First Instance failed to have regard to its rights of defence since the judgment is vitiated by a failure to state reasons in relation to the particularly lengthy duration of the procedure, which meant that it was no longer possible for the appellant to produce the evidence required to displace the presumption that it was responsible. In addition, the judgment of the Court of First Instance failed to have regard to the force of res judicata attaching to the judgment of 2 October 2003 in Case C-176/99 P ARBED v Commission which held that the Commission’s decision should be annulled to the extent that it related to the applicant.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81[EC] and 82 [EC], OJ 2003 L 1, p. 1.