EN Official Journal of the European Union C 37/28

Appeal brought on 15 December 2009 by Elf Aquitaine SA against the judgment delivered by the Court of First Instance (Seventh Chamber) on 30 September 2009 in Case T-174/05 Elf Aquitaine v Commission

(Case C-521/09 P)

2010/C 37/35

Language of the case: French

Parties

Appellant: Elf Aquitaine SA (represented by: E. Morgan de Rivery and S. Thibault-Liger, avocats)

Other party to the proceedings: European Commission

Form of order sought

— Principally: — Set aside, on the basis of Article 256 TFEU and Article 56 of Protocol (No 3) on the Statute of the Court of Justice of the European Union, the entire judgment of the Court of First Instance of 30 September 2009 in Case T-174/05 Elf Aquitaine SA v Commission of the European Communities; — grant the forms of order sought at first instance; — consequently, annul Articles 1(d), 2(c), 3 and 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81[EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 — MCAA);

— In the alternative, annul or reduce, on the basis of Article 261 TFEU, the fine of EUR 45 million imposed jointly and severally on Arkema SA and Elf Aquitaine by Article 2(c) of the above Commission decision, in the exercise of its unlimited jurisdiction on the basis of objective mistakes in the grounds and the reasoning of the Court’s judgment in Case T-174/05, as described in the six pleas submitted in the present appeal:

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

Pleas in law and main arguments

The appellant submits six pleas in law in support of its appeal.

By its first plea, the appellant submits that the Court erred in law when it did not draw all necessary consequences from the repressive nature of the sanctions in Article 101 TFEU [81 EC]. In particular, the appellants criticise that the Court excluded it unlawfully from the application of the principle of the presumption of innocence and the principle that penalties must be specific to the offender by imputing to the applicant responsibility for a breach committed by its subsidiary, even though the facts submitted by the appellant show, to the contrary, that it did not personally commit any breach and that it was even unaware, at the time it was occurring, that the contested breach was taking place.

By its second plea, Elf Aquitaine claims that there has been an infringement of the rights of the defence due to a wrong interpretation of the principles of equity and equality of arms. In the judgment under appeal, the Court held that the principle of equality of arms was respected in the present case since the appellant was given the opportunity to put its case properly during the administrative procedure and was informed for the first time of the claims brought against it in the statement of objections. According to the appellant, that interpretation is wrong because it is tantamount to denying that there is a need to respect the rights of the defence of the appellant from the stage of the preliminary investigation onwards and fails to have regard also to the need for the Commission to conduct such an inquiry in an impartial manner — favourable to their case or otherwise — in respect of all persons suspected of having committed a breach.

By its third plea, the appellant claims that the Court committed several errors of law in respect of the obligation to provide a statement of reasons. Those errors concerned both the assessment of the wording and the strength of the statement of reasons that the Commission had to provide and the content of the judgment under appeal itself, which contained several contradictory statements.

By its fourth plea, Elf Aquitaine alleges that there has been an infringement of Article 263 TFEU [230 EC] in that the Court exceeded the limits of the power to review the legality of a decision its own assessment of whether a breach committed by a subsidiary can be imputed to its parent company for that in the Commission’s decision, which was weak and summary.

By its fifth plea, which consists of four claims, the appellant criticises the Court’s failure to apply the rules concerning the imputability of anti-competitive practices. Rather than confirm the presumption that a parent company is responsible for the actions of its subsidiary, the Court ought to have examined whether the Commission had adduced evidence that the appellant actually interfered in the management of its subsidiary.

By its sixth and last plea, the appellant finally submits, in the alternative, that if the Court’s errors and infringement did not bring about the annulment of the Commission decision, they ought, at least, lead the Court to annul or reduce the fine imposed on it jointly and severally.