EN Official Journal of the European Union C 340/6

Appeal brought on 11 August 2011 by Total SA and Elf Aquitaine SA against the judgment delivered on 7 June 2011 in Case T-206/06 Total SA and Elf Aquitaine SA v Commission

(Case C-421/11 P)

2011/C 340/11

Language of the case: French

Parties

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

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— Primarily: — set aside, on the basis of Articles 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the judgment of 7 June 2001 pf the General Court in Case T-206/06 Total and Elf Aquitaine v Commission; — grant the form of order which it sought at first instance before the General Court; — consequently, annul Articles 1(c) and (d), 2(b), 3 and 4 of Commission Decision C(2006) 2098 final of 31 May 2006;

— in the alternative : amend, on the basis of Article 261 TFEU, the fines imposed jointly and severally on Elf Aquitaine and Total under Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006, in accordance with its unlimited jurisdiction, as a result of the objective errors in the grounds and the reasons for the judgment (in particular the Court’s treatment of the deterrence factor) of the General Court of 7 June 2011 in Case T-206/06, and reduce those joint and several fines to EUR 75 562 500 for Elf Aquitaine and EUR 58 500 000 for Total;

— in the further alternative : amend, on the basis of Article 261 TFEU, the fines imposed jointly and severally on Elf Aquitaine and Total under Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006, in accordance with its unlimited jurisdiction, in the proportion which the Court deems appropriate;

— in the further alternative : release Elf Aquitaine and Total from the obligation to pay overdue interest having accrued as from the date of Commission Decision C(2006) 2098 final of 31 May 2006 to the date of judgment in Case T-217/06 Arkema France and Others v Commission;

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

Pleas in law and main arguments

In support of their appeal, the appellants raise six main grounds of appeal and three in the alternative.

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

By the second ground of appeal, the appellants submit that the General Court made a manifestly erroneous interpretation of national law and of the concept of undertaking in that it conferred an imprecise legal value to the principle of autonomy of legal persons, inter alia.

By the third ground of appeal, the appellants claim, in essence, that the General Court voluntarily refused to draw consequences from the criminal nature of competition law sanctions and from the new obligations resulting from the Charter of Fundamental Rights of the EU. In the appellants’ view, the General Court applied the concept of undertaking under EU law abusively and erroneously, in spite of the presumption of autonomy on which national company law is based and of the criminal nature of competition law sanctions. Moreover, the appellants submit that the General Court should have raised, of its own motion, the illegality of the current administrative procedure before the Commission.

By the fourth ground of appeal, the appellants claim that their rights of defence have been infringed as a result of an erroneous interpretation of the principles of fairness and equality of arms. The General Court approved the Commission’s use of a probatio diabolica and erred in finding that the autonomy of a subsidiary must be assessed in a general manner in relation to its capital links with its parent company, whereas it should be assessed in relation to its conduct on a given market.

By the fifth ground of appeal, the appellants invoke an infringement of the duty to state reasons in that the General Court briefly took note of the rejection of their arguments by the Commission, without providing any analysis of the Commission's arguments (first part). Moreover, they allege errors in law with respect to the Commission’s obligation to state reasons (second part), and criticise the General Court for having substituted its own reasons for those of the Commission (third part).

By the sixth ground of appeal, the appellants allege infringement of the principle of sound administration in that the amount of the fine imposed on the appellants, which are parent companies, is higher than the amount inflicted on Arkema, the subsidiary which is liable for the infringement.

By the seventh ground of appeal, the appellants criticise the General Court for having erred on a number of points of law in the application of a deterrent multiplier of 3 to the fine. In so doing the General Court infringed the 1998 Guidelines on the method of setting fines (first part) and also the indivisible nature of the basic amount of the fine (second part).

By the eighth ground of appeal, the appellants ask for the amounts of the fines imposed on them to be reduced.

By the ninth and last ground of appeal, the appellants ask for the overdue interest as requested by the Commission pursuant to the implementation of the contested decision and the judgment to be set aside.