Cases T-117/07 and T-121/07

Areva and Others

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Rights of the defence – Duty to state reasons – Whether answerable for the infringement – Duration of the infringement – Fines – Joint and several liability for payment of a fine – Aggravating circumstances – Role of leader – Mitigating circumstances – Cooperation)

Summary of the Judgment

1. Competition – Community rules – Undertaking – Concept – Economic unit

(Art. 81(1) EC)

2. Competition – Community rules – Infringements – Attribution – Legal person responsible for the running of the undertaking at the time of the infringement – Exceptions

(Art. 81(1) EC)

3. Competition – Community rules – Infringement committed by a subsidiary – Attribution to the parent company having regard to the economic and legal links between them

(Art. 81(1) EC)

4. Acts of the institutions – Statement of reasons – Obligation – Scope – Plea based on absence or inadequacy of the statement of reasons – Plea based on inaccuracy of the statement of reasons – Distinction

(Art. 253 EC)

5. Community law – General principles of law – Non-retroactivity of penal provisions – Scope – Competition

(Council Regulations Nos 17, Art. 15(4), and 1/2003, Art. 23(5))

6. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Commission bearing the burden of proving the duration of the infringement

(Art. 81(1) EC; Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3))

7. Competition – Administrative procedure – Time-limit with regard to proceedings – Point from which time starts to run

(Art. 81 EC; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 25)

8. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

9. Competition – Fines – Joint and several liability for payment – Conditions

(Art. 81(1) EC; EEA Agreement, Art. 53)

10. Competition – Fines – Joint and several liability for payment – Scope

(Art. 81(1) EC; EEA Agreement, Art. 53)

11. Competition – Fines – Joint and several liability for payment – Possibility for each of the debtors to bring an annulment action against such a decision

(Art. 81(1) EC; EEA Agreement, Art. 53)

12. Competition – Community rules – Infringements – Attribution – Principle that penalties must be specific to the offender and the offence – Scope

(Art. 81(1) EC)

13. Community law – Principles – Right to effective judicial protection – Enshrined by the European Convention on the Protection of Human Rights reaffirmed by the Charter of Fundamental Rights of the European Union

(Charter of Fundamental Rights of the European Union, Art. 47)

14. Competition – Principles – Commission decision finding an infringement – Effective judicial review of the Commission’s decisions – Independent and impartial court – Unlimited jurisdiction

(Arts 81 EC, 229 EC and 230 EC; Council Regulations Nos 17, Art. 17, and 1/2003, Art. 31)

15. Competition – Community rules – Mandatory

(Art. 81 EC; EEA Agreement, Art. 53)

16. Competition – Administrative procedure – Decision finding an infringement and imposing a fine – Duty to comply with principle of conferred powers

(Arts 5 EC and 81 EC; EEA Agreement, Art. 53; Council Regulations Nos 17, Art. 15(2), and 1/2003, Arts 7(1) and 23(2))

17. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Provisional nature – Abandonment of objections shown to be unfounded with regard to certain companies involving a deterioration in the position of the company maintained as the addressee of the decision – Admissibility in the light of the exercise by the company of its right to be heard

(Council Regulations Nos 17, Art. 19(1), and 1/2003, Art. 27(1))

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader or instigator of the infringement – Concept

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Sections 2 and 3)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader of the infringement – Role played successively by various undertakings and companies managing them

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 2)

20. Competition – Fines – Amount – Discretion of the Commission – Judicial review – Unlimited jurisdiction

(Art. 229 EC; Council Regulations Nos 17, Art. 17, and 1/2003, Art. 31)

21. Competition – Fines – Amount – Determination – Criteria – Taking account of the worldwide turnover during the last complete year of the infringement with respect to the goods and services covered by it

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A)

1. In competition law, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the infringement in question. In prohibiting undertakings inter alia from entering into agreements or participating in concerted practices which may affect trade between Member States and having as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision.

(see para. 63)

2. In competition matters, in accordance with the principle of personal liability, under which a person can be held liable only for his own acts, it falls, in principle, to the person managing the undertaking when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, that undertaking is the responsibility or under the management of a different person.

In certain exceptional circumstances, the case‑law accepts that it is possible to derogate from the principle of personal liability under the so-called ‘economic continuity’ criterion, under which an infringement of the rules on competition may be imputed to the economic successor of the legal person which committed it, even where the latter has not ceased to exist on the date of adoption of the decision finding the infringement, in order that the effectiveness of those rules will not be compromised owing to the changes to, inter alia, the legal form of the undertakings concerned.

The Commission is entitled not to use the ‘economic continuity’ criterion and to hold personally liable for the participation of the undertaking in the infringement a parent company which directly managed that undertaking before transferring it to the wholly-owned or majority-owned subsidiaries, until the date on which those subsidiaries and that undertaking were finally transferred to another group.

(see paras 65-66, 72, 78)

3. In competition matters, it is, in principle, for the Commission to demonstrate that the parent company exercises a decisive influence on its subsidiary’s conduct on the market on the basis of factual evidence, including, in particular, any management power which the parent company exerted over its subsidiary. However, the Commission may reasonably presume that a wholly‑owned subsidiary carries out, in all material respects, the instructions given to it by its parent company and that that presumption implies that the Commission is not required to check whether the parent company has actually exercised that controlling power over its subsidiary. When, in the statement of objections, the Commission indicates its intention to hold a parent company personally liable for an infringement for which its subsidiary was responsible, relying on the presumption of liability which results from the fact that the parent company holds all the capital of that subsidiary, it is for the parent company which intends to dispute the liability attributed to it to produce, during the administrative procedure or, at the latest, before the Court, sufficiently conclusive evidence to rebut the presumption by demonstrating that, despite the parent company holding all of its capital, the subsidiary actually determined its conduct on the market independently.

The Commission must be able to take into account, in the decision finding an infringement, the replies by the undertakings concerned to the statement of objections. In that regard, it must be able not only to accept or reject the arguments of the undertakings concerned but also make its own analysis of the matters put forward by them in order either to abandon such objections as have been shown to be unfounded or to supplement or adapt its arguments both in fact and in law in support of the complaints which it maintains. That is the case where the Commission’s decision is based not only on the presumption of liability resulting from the fact that the parent company holds all the capital in the subsidiaries, but also on facts provided during the administrative procedure and showing that:

– within the group the operative organisation had primacy over the legal structure and the project activities concerned were managed, at the highest level, by the parent company and its predecessors;

– six members of the board of the subsidiary companies had been, simultaneously or consecutively, members of the board of the ultimate parent companies before their transfer to a new group;

– the appointment by the parent company of a new member of the board of its subsidiaries active in the sector supports the finding that the former exercised a decisive influence over the latter and

– as regards the intergroup restructuring operations, the change of business name of subsidiaries active in the sector concerned, taking place immediately after the intergroup transfer, demonstrates their integration into the group.

Likewise, the Commission is entitled to consider that the delegation of commercial functions could not relieve the parent company of its responsibility where it has itself admitted that, at the time of the infringement, it had to approve every proposed bid for the projects at issue above a certain threshold or comprising certain substantial risks for the group.

(see paras 86-87, 91, 97, 116, 144)

4. As regards the duty on the Commission to state reasons, in particular where it adopts a decision finding an infringement of competition rules, the complaint alleging an absence of reasons or inadequacy of the reasons stated must be distinguished from an objection based on the inaccuracy of the grounds of the decision by reason of an error in fact or in the legal assessment. The latter falls within the assessment of the substantive legality of the contested decision and not of essential procedural requirements and cannot therefore constitute an infringement of Article 253 EC.

(see para. 88)

5. The principle that penal provisions may not have retroactive effect is common to all the legal orders of the Member States, is enshrined in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and takes its place among the general principles of law whose observance is ensured by the judicature of the European Union. Although Article 15(4) of Regulation No 17 and Article 23(5) of Regulation No 1/2003 provide that Commission decisions imposing fines for infringement of competition law are not of a criminal nature, the Commission is none the less required to observe the general principles of European Union law, and in particular the principle of non-retroactivity, in any administrative procedure capable of leading to fines under competition law.

Such observance requires that the rules on attributing liability to legal and natural persons for infringements of competition law correspond with those laid down at the time when the infringement was committed. Where a number of entities are held personally liable for the participation of one and the same undertaking, for the purposes of competition law, in an infringement, they must be considered to be jointly and severally liable for that infringement. Furthermore, the person who had direct responsibility for or managed the undertaking at the time the infringement was committed, or the person who, because it in fact exercised control over the undertaking and determined the undertaking’s conduct on the market, indirectly managed that undertaking at the time when the infringement was committed, may be held personally liable and jointly and severally liable for the participation of one and the same undertaking in an infringement.

(see paras 131-134)

6. With specific regard to the duration of an infringement, the principle of legal certainty requires that, if there is no evidence directly establishing it, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates. As regards the means of proof which may be used by the Commission in that respect, it is normal for the activities which the anti-competitive practices and agreements entail to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti‑competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of competition law. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement.

It follows that, in so far as, taken as a whole, those agreements, with regard to their date of entry into force and their period of validity, the Commission was entitled to find that those agreements constituted indicia that the infringement continued, uninterrupted, during the period in question. Thus, the proof of repeated manifestations of the cartel, and the set of indicia, gathered by the Commission, that the activities in which the undertaking in question participated in the context of the cartel continued throughout the period in question must be regarded as sufficient evidence that the cartel continued, uninterrupted, between the dates adopted by the Commission’s decision.

(see paras 164-166, 176-177)

7. Pursuant to Article 25 of Regulation No 1/2003, the Commission’s power to impose a fine for infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area is limited to five years. Time is to begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases.

(see para. 188)

8. The Commission cannot be criticised for not having given specific reasons for the fine imposed jointly and severally on two companies, in the event of infringement of the competition rules, in the light of the fact that those companies no longer formed a single economic unit on the date when the contested decision was adopted, since it is apparent from the contested decision that the Commission does not regard that fact as prohibiting the imposition of a fine jointly and severally on them. The Commission is not required to include, in its decision, specific reasons concerning the assessment of aspects which seem to it manifestly irrelevant or insignificant or plainly of secondary importance for its assessment.

(see para. 200)

9. Joint and several liability for the payment of fines on account of an infringement of Article 81 EC or Article 53 of the Agreement on the European Economic Area is a legal effect which follows as a matter of law from the substantive provisions of those articles.

Joint and several liability of a number of persons for payment of a fine on account of an undertaking’s participation in an infringement of Article 81 EC and Article 53 of the EEA Agreement follows from the fact that each of them can be held personally liable for the participation of that undertaking in the infringement. The unitary conduct of the undertaking on the market justifies the fact that, for the purposes of competition law, the companies or, more generally, the persons which can be held personally liable, may be held jointly and severally liable. Joint and several liability for the payment of fines for an infringement of Article 81 EC and Article 53 of the EEA Agreement, inasmuch as it contributes to the effective recovery of those fines, is part of the objective of deterrence pursued generally by competition rules and respects the principle of non bis in idem which is a fundamental principle of EU law, also enshrined in Article 4 of Protocol No 7 to the European Convention on Human Rights, which precludes penalising more than once, for the same infringement of competition law, the same conduct of an undertaking on the market through the persons which may be held personally liable for that conduct.

The fact that the personal liabilities incurred by a number of companies on account of the participation of the same undertaking in an infringement are not the same does not preclude those companies from being jointly and severally liable for a fine, where the joint and several liability for the payment of the fine covers only the period of the infringement during which they formed an economic unit and thus constituted an undertaking for the purposes of competition law.

(see paras 204-206)

10. In so far as the plea alleging breach of the principle of legal certainty can be interpreted as a plea that the rules on joint and several liability for the payment of fines in the event of an infringement of competition rules are illegal, on the ground that they are the source of uncertainty as regards the payment of a fine, the determination of which debtor is obliged to pay and the legal position of other debtors who are jointly and severally liable, that plea seeks a ruling on the very legality of the system of ‘joint and several liability for the payment of fines’ in competition law and a determination whether the resultant rights and obligations can be known with sufficient precision by companies which are fined.

In that regard, like the concept of ‘undertaking’ for the purposes of competition law, of which it is merely an ipso jure effect, the concept of ‘joint and several liability for the payment of fines’ is an autonomous concept which must be interpreted by reference to the objectives of the competition law system of which it forms a part and, where necessary, by reference to the general principles which deriving from the national legal systems as a whole. 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 has, furthermore, already been held that companies which are jointly and severally liable to pay a fine are required to pay a single fine, the level of which is calculated by reference to the turnover of the relevant undertaking.

It follows that each company is liable to pay the whole of the fine with regard to the Commission and that payment by one of them releases all of them from their obligation vis‑à‑vis the Commission. Companies on which a fine has been imposed jointly and severally 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. Accordingly, where a company, against which the Commission proceeds, pays the whole of the fine, it may, on the basis of that Commission decision, make a claim for recovery against each of the other jointly and severally liable debtors in respect of its share. While the decision by which a number of companies are held jointly and severally liable for the payment of a fine thus 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 debtors for recovery from them of the amounts which it has paid in excess of its share.

(see paras 213, 215)

11. Joint and several liability for the payment of fines in competition law does not hinder the right of each of the penalised companies to bring an action for annulment of the decision by which the Commission imposed the fine on them for which they are jointly and severally liable.

(see para. 217)

12. The principle that penalties must be specific to the offender and the offence, which is applicable in any administrative procedure that may lead to the imposition of sanctions under competition law, requires that a person is penalised only for acts imputed to him individually. That is the case where two companies have been penalised, on account of the participation of an undertaking in an infringement, for acts which have been attributed to them individually by the Commission, on account of their responsibility in, directly or indirectly, managing that undertaking.

(see paras 219-220)

13. The requirement of judicial review constitutes one of the general principles of EU law stemming from the constitutional traditions common to the Member States and has also been enshrined in Articles 6 and 13 of the European Convention on Human Rights. The right to an effective remedy is, moreover, reaffirmed in Article 47 of the Charter of Fundamental Rights of the European Union.

(see para. 224)

14. The requirement for effective judicial review applies to any Commission decision that finds and punishes an infringement of competition law. Pursuant to Article 17 of Regulation No 17, and Article 31 of Regulation No 1/2003, the Court has unlimited jurisdiction in relation to actions brought against decisions whereby the Commission fixes or has fixed a fine and it may cancel, reduce or increase the fine imposed.

In the context of actions based on Article 230 EC, the review of the legality of a Commission decision finding an infringement of competition law and imposing a fine in that respect on the natural or legal person concerned must be regarded as effective judicial review of that decision. The scope of the review carried out by the judicature of the European Union and, therefore, the effectiveness of actions brought against decisions in which the Commission finds an infringement of the competition rules and imposes a fine are strengthened by the unlimited jurisdiction granted to the General Court in that area. More than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the judicature of the European Union authorises it to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine.

(see paras 225-227)

15. Article 81 EC and, by analogy, Article 53 of the Agreement on the European Economic Area (EEA), are public policy provisions, essential for the accomplishment of the tasks entrusted to the European Community and to the EEA, with the result that the nature of the liability and the penalty incurred by companies, where there has been an infringement of those provisions, cannot be left freely to those companies.

(see para. 229)

16. Under Article 5 EC, the European Community can act only within the limits of the competences conferred upon it by the EC Treaty and of the objectives assigned to it therein. It has therefore only those powers which have been conferred upon it.

Where the Commission opens a proceeding in order to adopt a decision finding an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area, it alone is competent, pursuant to Article 15(2) of Regulation No 17, or Article 7(1) and Article 23(2) of Regulation No 1/2003, to find that infringement and impose fines on the undertakings which, either intentionally or negligently, participated in that infringement. The Commission cannot delegate to third parties powers which have thus been conferred on it by the provisions cited without thereby breaching the principle of conferred powers.

It cannot be considered that in a given case the Commission delegated to a national court or an arbitration panel some of the powers conferred on it to find and penalise such infringements, since the Commission determined, in the decision adopted in the same case, the respective share of liability of two separate companies in the participation of the undertaking concerned in the infringement found and, therefore, their respective shares of the amount of the fine for which they are jointly and severally liable to the Commission.

(see paras 233-234, 236)

17. The statement of objections constitutes a preparatory document containing assessments of fact and law which are purely provisional. For that reason, the Commission may, and even must, take into account the factors emerging from the administrative procedure in order, inter alia, to abandon such objections as have been shown to be unfounded. If a company penalised for infringements of competition law was in a position to properly make known its point of view on the abandonment by the Commission, in the contested decision, of a complaint that the latter had previously made against other companies, to hold them jointly and severally liable with the first company for the participation of one and the same undertaking in an infringement, before the adoption of that decision, the rights of the defence have not been breached on account of the inconsistency between the statement of objections and the contested decision.

(see paras 248-249, 262)

18. The role of ‘ringleader’ played by one or more undertakings in a cartel must be taken into account for the purposes of calculating the fine, since the undertakings which have played such a role must bear particular responsibility by comparison with the other undertakings. In order to be characterised as a leader, the undertaking must have represented a significant driving force in the cartel. That is the case where an undertaking has played the role of ringleader by taking on the functions of ‘European Secretary’, functions which conferred on it the role of leader in coordinating the cartel and, in any event, in its actual functioning, and, more specifically when the ‘European Secretary’ was the point of contact between members of the cartel and played a pivotal role in its actual functioning, in that it facilitated the exchange of information within the cartel, that it bundled, compiled and exchanged with the other members of the cartel essential information on its functioning and, in particular, information concerning certain particularly important projects, in that it acted as secretariat for the working groups and that from time to time it amended the codes intended to conceal those meetings and contacts.

(see paras 280, 283, 287)

19. In competition matters, in the case of an infringement over a long period during which different undertakings, managed by various companies, have successively played, for well‑established periods, the role of leader in the infringement, the principles of equal treatment and proportionality require that the companies which managed one or more undertakings which, under their management, played the role of ‘leader in the infringement’ should have a different increase in the basic amount of their fine where the period during which the undertakings under their management played that role is substantially different. The role of leader relates to the functioning of the cartel and that, unlike the role of instigator of the cartel, is bound to occur over a certain period. Therefore, account must be taken of the fact that a company which managed one of the undertakings which participated in the cartel can be found liable for being the driving force for that undertaking in the functioning of the cartel for, at most, a little over one quarter of the period of the infringement, while another company which managed a different undertaking participating in the cartel can be found liable for being the driving force in the functioning of the cartel during almost three quarters of the period of the infringement.

It follows that the Commission has breached the principles of equal treatment and proportionality by imposing an identical increase in the basic amount of the fine on the companies which played, via the undertakings they directed, the role of leader in the cartel, although the periods during which the relevant undertaking(s) carried out, under their management, the duties of leader of the cartel were substantially different.

However, even if the Commission had unlawfully applied criteria concerning the classification of an undertaking as leader in the infringement, by not classifying an undertaking, despite the significant role which that undertaking played in the cartel, such an unlawful application, in favour of a third party, would not justify upholding the grounds based on failure to comply with the principles of equal treatment and non-discrimination.

(see paras 307-308, 311-312)

20. By virtue of the unlimited jurisdiction conferred by Article 17 of Regulation No 17 and Article 31 of Regulation No 1/2003 the judicature of the European Union is empowered, in addition to carrying out a mere review of lawfulness of the penalty, to substitute its own appraisal for that of the Commission and, consequently to cancel, reduce or increase the fine imposed where the question of the amount of the fine is before it. In that appraisal the increase related to the role of leader in the infringement played by the undertaking in question must be set at a level which guarantees its deterrent effect.

(see paras 318-319)

21. When imposing fines on several companies for the participation of undertakings, under their management, in an infringement of the competition rules and the determination of their respective amounts, the Commission does not deviate from the calculation method laid down in the Guidelines for the calculation of fines in Article15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, does not exceed the legal framework for penalties established by Article 15 of Regulation No 17 and Article 23 of Regulation No 1/2003 and does not breach the principle of proportionality by deciding to refer, in principle, to the worldwide turnover in relation to the projects at issue achieved by each undertaking in the last full year of the infringement, in order to assess the relative size and economic power of each undertaking at the time of the infringement. That is the case, in particular, where the Commission considers that, given the global character of a cartel, it is appropriate to take the share of worldwide turnover in relation to the projects covered by the cartel held by each undertaking in the last full year of the infringement as the basis for comparison of the relative significance of each undertaking, that basis giving the most appropriate picture of the capacity of each undertaking to cause significant damage to other operators in the European Economic Area and to give an indication of its contribution to the effectiveness of the cartel as a whole, or conversely of the instability which have affected the cartel had it not participated.

(see paras 360, 362)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

3 March 2011 ( )

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Rights of the defence – Duty to state the reasons on which the decision is based – Whether answerable for the infringement – Duration of the infringement – Fines – Joint and several liability for payment of a fine – Aggravating circumstances – Role of leader – Mitigating circumstances – Cooperation)

In Cases T‑117/07 and T‑121/07,

Areva,société anonyme, established in Paris (France),

Areva T&D Holding SA, established in Paris,

Areva T&D SA, established in Paris,

Areva T&D AG, established in Oberentfelden (Switzerland),

represented by A. Schild and J.-M. Cot, lawyers,

Alstom, société anonyme, established in Levallois-Perret (France), represented initially by J. Derenne, lawyer, W. Broere, Solicitor, A. Müller‑Rappard and C. Guirado, lawyers, and then by J. Derenne and A. Müller‑Rappard, lawyers,

applicants,

v

European Commission, represented initially by X. Lewis and F. Arbault, then by X. Lewis, and finally by V. Bottka and N. Von Lingen, acting as Agents,

defendant,

APPLICATIONS for the partial annulment of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) or, in the alternative, a reduction in the amount of the fine imposed on the applicants,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and S. Soldevila Fragoso, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 24 March 2009,

gives the following

Judgment

Background to the dispute

1 The background to the dispute is set out, in essence, in the findings made by the Commission of the European Communities in Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) (‘the contested decision’). In so far as those factual elements have not been disputed or, at least, not properly disputed by the parties, they must be regarded as established for the purposes of the present action.

Product concerned

2 Gas insulated switchgear (‘GIS’) is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.

3 Substations are auxiliary power stations where electrical current is converted. In addition to the transformer, other essential components for substations are control systems, relays, batteries, chargers and switchgear. The function of switchgear is to protect the transformer from overload and/or insulate the circuit and the faulty transformer.

4 Insulation of switchgear may be through gas, air or some combination of the two (‘hybrid switchgear’). GIS is sold across the world both as part of turnkey power substations and as loose equipment which has to be integrated into a turnkey power substation. It accounts for 30 to 60% of the total price of a substation.

5 The contested decision concerns GIS projects involving a voltage from 72.5 kV upwards (‘GIS projects’), which includes GIS as a stand-alone product, including all associated services (transport, erection, testing, insulation etc.) and GIS based turnkey power substations, including GIS and other parts of the substation such as transformers, and all associated services (transport, cabling, erection, insulation etc.).

Undertakings in question

6 Alstom (formerly Alsthom), a limited liability company under French law, is the parent company of a group of companies (‘the Alstom Group’). Throughout the period from 15 April 1988 to 8 January 2004, the Alstom Group was active in the electricity transmission and distribution sector (‘the T&D sector’) and, in particular, in GIS.

7 The Alstom Group’s GIS activities in France were carried out by Alsthom SA (France) until 1989, when Alsthom SA (France) was renamed GEC Alsthom SA, which was a wholly‑owned subsidiary of GEC Alsthom NV. On 16 November 1992, Kléber Eylau SA was created and was granted the French GIS activities by an agreement which took effect on 7 December 1992. GEC Alsthom SA owned 99.76% of Kléber Eylau and Etoile Kléber owned 0.04%. In June 1993 Kléber Eylau’s name was changed to GEC Alsthom T&D SA which, in June 1998, became Alstom T&D SA. Alstom T&D SA was a wholly‑owned subsidiary of Alstom Holdings (France), which was in turn a wholly‑owned subsidiary of Alstom.

8 From January 1986, Alstom’s GIS activities in Switzerland ran parallel to those in France, when Sprecher Energie AG became a wholly‑owned subsidiary of Alsthom. In November 1993, Sprecher Energie became GEC Alsthom T&D AG, which, in July 1997, became GEC Alsthom AG and, in June 1998, became Alstom AG (‘Alstom Switzerland’). On 22 December 2000, the latter was acquired by Alstom Power (Schweiz) AG. The new entity was called Alstom (Schweiz) AG. In November 2002, a new legal entity was created within the Alstom Group, to which the activities in the T&D sector in Switzerland were transferred. Initially named Alstom (Schweiz) Services AG, that new entity was subsequently renamed Alstom T&D AG.

9 All of the Alstom Group’s T&D sector activities were transferred, on 8 January 2009, to a group of which Areva, a limited liability company under French law with a management board and a supervisory board, is the parent company (‘the Areva Group’). From 9 January to 11 May 2004, the Areva group’s GIS activities were carried out by Areva T&D SA and by Areva T&D AG, wholly‑owned subsidiaries of Areva T&D Holding SA, which is itself wholly‑owned by Areva (taken as a whole, ‘the companies of the Areva Group’).

Administrative procedure

10 On 3 March 2004, ABB Ltd (‘ABB’) informed the Commission of anticompetitive practices in the GIS sector and made an oral application for immunity from fines pursuant to the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the Leniency Notice’).

11 The practices reported by ABB entailed coordination on a world-wide scale for the award of GIS projects, involving market sharing, allocation of market quotas and maintenance of respective market shares, the allocation of GIS projects to designated producers and manipulation of the bidding procedure for those projects (bid-rigging) in order to ensure that the assigned producers were awarded the contract in question, the fixing of prices by means of complex price arrangements for GIS projects which were not allocated, the termination of licence agreements with non‑cartel members and the exchange of sensitive market information.

12 The oral application for immunity made by ABB was supplemented, inter alia on 7 May 2004, with oral statements and documentary evidence. On 25 April 2004, the Commission had granted conditional immunity to ABB.

13 On the basis of ABB’s statements, the Commission launched an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of a number of companies operating in the GIS sector.

14 Between 14 and 25 May 2004, the Areva Group cooperated with the Commission and, pursuant to the Leniency Notice, provided it with various documentary evidence and information.

15 On 4 October 2004, ABB replied to a request for information from the Commission.

16 On 6 February 2006, the Commission sent a request for information to Alstom, to which the latter replied on 24 February 2006.

17 On 20 April 2006, the Commission adopted a statement of objections which, in addition to Alstom and the companies of the Areva Group, was addressed to ABB, Fuji Electric Holdings Co., Ltd and Fuji Electric Systems Co., Ltd (together ‘the companies of the Fuji Group’), Hitachi and Hitachi Europe Ltd (together ‘Hitachi’), Japan AE Power Systems Corp. (‘JAEPS’), Mitsubishi Electric System Corp. (‘Melco’), Nuova Magrini Galilieo SpA, Schneider Electric SA (‘Schneider’), Siemens AG, Toshiba Corp. and five other companies – the parent company of which was VA Technology AG – (‘the VA Tech Group’) including VA Technology itself.

18 On 5 May 2006, Alstom was able to inspect the oral statements made by the other companies implicated, in accordance with the Leniency Notice.

19 On 30 June 2006, Alstom and the companies of the Areva Group sent to the Commission, within the prescribed time‑limit, their respective observations in reply to the statement of objections. Annexed to its reply to the statement of objections, Alstom produced a number of the Alstom Group’s internal documents in respect of which confidential treatment was requested for all third‑parties except for the Commission. Likewise, ABB, the companies of the Fuji Group, Hitachi and JAEPS, Melco, Schneider, Siemens AG Österreich, Siemens and Toshiba replied, in writing, to the statement of objections within the prescribed time‑limits.

20 By letter of 12 July 2006, the companies of the Fuji Group cooperated with the Commission and, pursuant to the Leniency Notice, provided it with various documentary evidence and information.

21 On 14 July 2006, ABB sent the Commission a ‘supplementary reply to the statement of objections.’

22 On 18 and 19 July 2006, the Commission held hearings of the companies to which the statement of objections had been sent.

23 On 25 August 2006, the Commission made available to the parties to the proceeding, for comment, extracts from the non‑confidential version of the reply to the statement of objections from the companies of the Fuji Group, the Fuji Group’s application of 12 July 2006 pursuant to the Leniency Notice (see paragraph 20 above), the supplementary reply from ABB to the statement of objections and additional documents. Alstom submitted its observations on those documents on 15 September 2006, and provided a statement from one of its employees, Mr S., who had direct knowledge of the facts at issue.

24 On 20 September 2006, the Commission sent a request for information to the companies of the Areva Group, to which they replied on 6 October 2006 producing numerous documents relating to the reorganisation of operations in the T&D sector within the Alstom Group for the purpose of the intergroup transfer referred to in paragraph 9 above.

25 On 14 November 2006, the Commission sent its view, in English, to Alstom, on the additional documents referred to in paragraph 23 above, and, as a result of a request from Alstom on 17 November 2006, sent that view to it, in French, on 22 November 2006. On 27 November 2006, Alstom submitted its observations in relation to that view.

26 On 4 December 2006, Alstom sent to the Commission a letter regarding the determination of the legal persons concerned by the facts at issue. That letter contained, inter alia, numerous schedules illustrating the various operations for restructuring the T&D sector activities within the Alstom Group.

Contested decision

27 On 24 January 2007, the Commission adopted the contested decision, a summary of which was published in the Official Journal of 10 January 2008 (OJ 2008 C 5, p. 7). Alstom and the companies of the Areva Group were notified of the contested decision on 8 February 2007.

28 In addition to Alstom and the companies of the Areva Group, the contested decision was addressed to ABB, the companies of the Fuji Group, the companies of the Hitachi Group, JAEPS, Melco, Nuova Magrini Galileo, Schneider, Siemens, Siemens AG Österreich, Siemens Transmission & Distribution Ltd (‘Reyrolle’), Siemens Transmission & Distribution SA, Toshiba and VA Tech Transmission & Distribution GmbH & Co. KEG.

29 In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. It pointed out that the allocation of GIS projects had been carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the Japanese and European producers then had to distribute amongst themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’) established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘the common understanding’), under which GIS projects in Japan, on the one hand, and in the countries of European members of the cartel, on the other – together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the two groups and were not charged to their respective quotas.

30 The GQ Agreement also contained rules relating to the exchange of information necessary for operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, and to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, it applied across the world, except in the United States, Canada, Japan and 17 Western European countries. Furthermore, under the common understanding, GIS projects in European countries other than the ‘home countries’ were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.

31 According to the Commission, the sharing of GIS projects between European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled ‘E-Group Operation Agreement for GQ Agreement’ (‘the EQ Agreement’). It indicated that the distribution of GIS projects in Europe followed the same rules and procedures as those governing the distribution of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.

32 In recital 142 of the contested decision, the Commission stated that, in the GQ Agreement and in the EQ Agreement, and for the purpose of the organisation and proper functioning of the cartel, different members of the cartels were identified by a code, consisting of numbers for the European members and letters for the Japanese members. The initial codes were replaced by just numbers from July 2002.

33 In Article 1(b) of the contested decision, the Commission found that Alstom had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’) by participating in a complex of agreements and concerted practices in the GIS sector in the EEA for the period from 15 April 1988 to 8 January 2004. In Article 1(c), (d), (e) and (f) of the contested decision, it also found that Areva and Areva T&D Holding had committed that double infringement for the period from 9 January 2004 until 11 May 2004, that Areva T&D AG had committed that double infringement for the period from 22 December 2003 until 11 May 2004, and that Areva T&D SA had committed that double infringement for the period from 7 December 1992 until 11 May 2004.

34 In Article 2(b) and (c) of the contested decision, in respect of the infringements referred to in Article 1 of the contested decision, Alstom individually was fined a sum of EUR 11 475 000 and it was also fined EUR 53 550 000 for which it was jointly and severally liable with Areva T&D SA.

35 In Article 2(c) of the contested decision, in respect of the infringements contained in Article 1 of the contested decision, Areva T&D SA was fined a sum of EUR 53 550 000 for which it was jointly and severally liable with Alstom and, in addition, it was fined EUR 25 500 000 for which it was jointly and severally liable with Areva, Areva T&D Holding and Areva T&D AG.

Procedure and forms of order sought

36 By documents lodged at the Registry of the General Court on 18 April 2007, the companies of the Areva Group and Alstom brought the present actions, which were registered as Cases T‑117/07 and T‑121/07 respectively.

37 Upon hearing the Report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure in Cases T‑117/07 and T‑121/07.

38 After the parties had been heard on the matter, the President of the Second Chamber, by order of 12 March 2009, joined Cases T‑117/07 and T‑121/07 for the purposes of the oral proceedings in accordance with Article 50 of the Rules of Procedure of the General Court. Furthermore, he granted confidential treatment in relation to the documents annexed to Alstom’s reply to the statement of objections (see paragraph 19 above), contained in the case file of Case T‑121/07.

39 At the hearing held on 24 March 2009, the parties presented oral argument and their answers to the questions put by the Court. The applicants confirmed that their pleas in law and grounds of complaints alleging infringement of Article 81 EC should also be understood to cover Article 53 of the EEA Agreement. The Commission took the view that joint and several liability for an infringement of competition law is presumed to be liability in equal shares where the operative part of the decision finding that liability does not specify differently. The applicants, by contrast, disputed whether such a presumption could operate. Lastly, the Commission stated that, in assessing the role of leader in an infringement of competition law, it had been necessary to weigh all the criteria, including the duration and intensity of that role of leader. Those observations were recorded in the minutes of the hearing. In their final observations, the companies of the Areva Group criticised an alleged material error which consisted in considering Areva T&D AG to be the same company as Alstom T&D AG, for which only the business name had been altered.

40 By letters lodged at the Registry of the Court on 29 and 30 April 2009, Alstom and the companies of the Areva Group respectively made a number of observations on the content of the minutes of the hearing as regards the Commission’s replies to questions put by the Court on the arrangement for joint and several liability for infringement of competition law.

41 By order of the Court of 3 June 2009, the oral procedure was re‑opened. Pursuant to Article 7(2) of the Instructions to the Registrar of the General Court, the President of the Second Chamber of the General Court decided to add the letters lodged on 29 and 30 April 2009 to the case‑file.

42 By letter lodged at the Registry of the Court on 18 June 2009, the Commission submitted its observations on those letters. In that context, it contended that, where it imposes a fine on a number of undertakings, for which they are jointly and several liable, and does not specify further in the operative part of its decision, then it does not seek to govern the issue of the respective contributions to payment of that fine as between the various debtors.

43 By decision of 1 July 2009, the President of the Second Chamber of the General Court rejected the application to amend the minutes of the hearing, after having checked them against the exact wording of the oral replies given by the Commission at that hearing.

44 Alstom claims that the Court should:

– annul Article 1(b) and Article 2(b) and (c) of the contested decision;

– in the alternative, substantially reduce the fine which was imposed on it in Article 2(b) and (c) of the contested decision;

– order the Commission to pay the costs.

45 The companies of the Areva Group claim that the Court should:

– annul Article 1 of the contested decision, inasmuch as, first, it attributes joint and several liability for the infringement to Areva T&D SA and Alstom for the period from 7 December 1992 to 8 January 2004 and, second, it attributes joint and several liability to them for the infringement for the period from 9 January to 11 May 2004;

– in the alternative, annul or substantially reduce the amount of the fine which was imposed on them in Article 2(c) of the contested decision;

– order the Commission to pay the costs.

46 The Commission contends that the Court should:

– dismiss the applications as unfounded;

– order the applicants to pay the costs.

Law

47 Since the present cases are related, and after hearing the views of the parties on that matter, the Court considers that they should be joined for the purposes of the judgment, in accordance with Article 50 of the Rules of Procedure of this Court.

48 The applications seek (i), primarily, the annulment of Article 1(b), (c), (d), (e) and (f) of the contested decision, (ii) primarily or in the alternative, the annulment of Article 2(b) and (c) of the contested decision and (iii), in the alternative, amendment of Article 2(b) and (c) of the contested decision.

49 It is first necessary to examine the heads of the forms of order seeking annulment of Article 1(b), (c), (d), (e) and (f) of the contested decision. Then, the heads seeking annulment of Article 2(b) and (c) of the contested decision will, in so far as necessary, be examined. Lastly, in so far as necessary, the heads seeking amendment of Article 2(b) and (c) of the contested decision will be examined.

50 In support of the form of order which they seek in Case T‑117/07, the companies of the Areva Group have raised seven pleas in law. The first plea alleges breach of the duty to state reasons laid down in Article 253 EC. The second plea is based, in essence, on infringement of the rules on attributing liability for infringements of Article 81(1) EC and Article 53(1) of the EEA Agreement and breach of the general principles of legal certainty and non‑retroactivity. The third plea alleges, in essence, infringement of the rules on attributing liability for infringements of Article 81(1) EC and Article 53(1) of the EEA Agreement. The fourth plea is based, in essence, on infringement of the rules on attributing liability for infringements and on joint and several liability for the payment of fines resulting from Article 81(1) EC and Article 53(1) of the EEA Agreement, infringement of Article 7 EC and breach of the general principles of equal treatment, proportionality, legal certainty, non‑retroactivity of legal penalties and effective judicial protection. The fifth plea alleges infringement of the rules on joint and several liability for the payment of fines resulting from Article 81(1) EC and Article 53(1) of the EEA Agreement. The sixth plea alleges, in essence, infringement of Article 23(2)(a) of 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) and of Section 2 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC (OJ 1998 C 9, p. 3; ‘the Guidelines’), an error of assessment and breach of the general principles of equal treatment and proportionality. Lastly, the seventh plea is based, in essence, on an error of assessment and infringement of Article 81 EC and Article 53(1) of the EEA Agreement, and of the Leniency Notice.

51 In support of the form of order which it seeks in Case T‑121/07, Alstom has raised eight pleas in law. The first plea alleges infringement of the right to an effective remedy. The second plea is based, in essence, on infringement of the rules on joint and several liability for the payment of fines resulting from Article 81 EC and Article 53 of the EEA Agreement, on breach of the general principle of legal certainty and the general principle that the penalty must be specific to the offender and to the offence and on breach of the duty to state reasons. The third plea alleges breach of the duty to state reasons laid down in Article 253 EC. The fourth plea is based, principally, on infringement of the rules on attributing liability for infringements of Article 81 EC and Article 53 of the EEA Agreement and on an error in law or, in the alternative, on an infringement of Article 25 of Regulation No 1/2003. The fifth plea is based, in essence, on an error of assessment, infringement of the Guidelines, breach of the principles of equal treatment and proportionality and of the duty to state reasons. The sixth plea alleges, in essence, infringement of the rules on proving the continuous nature of the infringement resulting from Article 23(3) of Regulation No 1/2003 and Article 15(2) of Council Regulation No 17 of 6 February 1962, First regulation implementing Articles [81 EC] and [82 EC], as amended (OJ 1962 English Special Edition Series I, p. 87), and breach of the principle of legal certainty. The seventh plea is based on a failure to observe the rights of the defence and infringement of Article 27(1) of Regulation No 1/2003. The eighth plea is based, in essence, on infringement of the Guidelines and, in the alternative, on breach of the principle of proportionality.

52 To the extent that some of the pleas raised by the applicants overlap, they will be considered together in the interests of the sound administration of justice.

Heads of the forms of order seeking annulment of Article 1(b), (c), (d), (e) and (f) of the contested decision

53 These pleas and grounds of complaint contesting the Commission’s finding that the companies of the Areva Group and Alstom infringed Article 81 EC and Article 53 of the EEA Agreement on account of their participation in a complex of agreements and concerted practices in the EEA for the periods mentioned in Article 1 of the contested decision are directed against Article 1(b), (c), (d), (e) and (f) of that decision (see paragraph 33 above).

54 In Case T‑117/07, those heads of the form of order seeking annulment of Article 1(c), (d), (e) and (f) of the contested decision are supported by the pleas and grounds of complaint, raised in the application, which challenge the Commission’s findings that Areva T&D SA, for the period from 7 December 1992 to 11 May 2004, Areva T&D AG, for the period from 22 December 2003 to 11 May 2004, and Areva and Areva T&D Holding SA, for the period from 9 January to 11 May 2004, are personally liable for the participation of their GIS activities division, or the participation of their subsidiaries, in a complex of agreements and concerted practices in the EEA (second, third, fourth and fifth pleas), or which claim infringement of essential procedural requirements which may have had an effect on those findings (first plea).

55 In Case T‑121/07, those heads of the form of order seeking annulment of Article 1(b) of the contested decision are supported by the pleas and grounds of complaint, raised in the application, which challenge the Commission’s finding that Alstom is personally liable for the participation of its GIS activities division, or the participation of its subsidiaries, in a complex of agreements and concerted practices in the EEA for the period from 15 April 1988 until 8 January 2004 (fourth and sixth pleas), or which claim infringement of essential procedural requirements which may have had an effect on that finding (third and sixth pleas).

Preliminary observations

56 It is apparent from the pleas and complaints raised in the applications that the companies of the Areva Group, on the one hand, and Alstom, on the other, make diametrically opposed claims as regards the attribution of liability for the infringement for all or part of the period from 15 April 1988 to 11 May 2004.

57 Alstom claims, in essence, that the personal liability which it incurs by reason of the participation of its GIS activities division in the infringement for the period from 15 April 1988 to 8 January 2004 was transferred to Alstom T&D SA and Alstom T&D AG as a result of restructuring operations in the T&D sector within its group. It claims, furthermore, that no personal liability can be attributed to it by reason of the participation of those subsidiaries in the infringement for the periods from 7 December 1992 to 8 January 2004 and from 22 December 2003 to 8 January 2004 respectively, in so far as Alstom T&D SA and Alstom T&D AG, to which those activities had been transferred, determined their conduct on the market independently. Lastly, Alstom claims that the personal liability attributed to it by reason of the participation of its GIS activities division, of Alstom T&D SA and of Alstom T&D AG in the infringement for the period from 15 April 1988 to 8 January 2004 was transferred, with that sector and those subsidiaries (which then became Areva T&D SA and Areva T&D AG), to the companies of the Areva Group by way of an intergroup transfer of T&D sector activities.

58 On the other hand, the companies of the Areva Group claim that no personal liability can be attributed to them on account of the participation of companies of the Alstom Group in the infringement for the period from 7 December 1992 to 8 January 2004 and from 22 December 2003 to 8 January 2004 respectively, in so far as the conduct on the market of Alstom T&D SA and Alstom T&D AG, to which the GIS activities had been transferred, was determined by Alstom. In addition, Areva and Areva T&D Holding SA claim that no personal liability can be attributed to them on account of the participation of their subsidiaries in the infringement for the period from 9 January to 11 May 2004, inasmuch as Areva T&D SA and Areva T&D AG, to which those activities had been transferred, determined their conduct on the market independently.

59 It must be noted that, in their written pleadings, the applicants rely on the fact that Areva T&D SA and Areva T&D AG are merely new business names which were given to Alstom T&D SA and Alstom T&D AG after their transfer to the Areva Group on 8 January 2004. In that regard, the assertions made by the companies of the Areva Group in their final observations at the hearing, that the Commission made a material error in considering Areva T&D AG to be the same company as Alstom T&D AG, cannot be taken into account. Inasmuch as those assertions are the basis for a plea claiming that the contested decision is vitiated by a factual error on that point, it must be recalled that, pursuant to the first subparagraph of Article 48(2) of the Rules of Procedure, 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. In so far as, in the present case, the companies of the Areva Group have not detailed the essential factual elements on which their new plea is based or, a fortiori, claimed that those factual elements came to light in the course of the procedure, the assertions referred to above must be rejected as inadmissible. Therefore, it must be held, in Cases T‑117/07 and T‑121/07, that Alstom T&D AG and Areva T&D AG represent, under different business names, one and the same legal person.

The transfer, to Areva T&D SA and Areva T&D AG, of the personal liability incurred by Alstom on account of the participation of its GIS activities division in the infringement for the period from 15 April 1988 to 6 December 1992

– Arguments of the parties

60 In the context of the second part of its fourth plea, Alstom, alleging an error of law, claims that in the contested decision the Commission did not transfer, to Areva T&D SA and Areva T&D AG, the personal liability which it incurred on account of the participation of part of its ‘T&D division’ in the infringement for the period from 15 April 1988 to 6 December 1992.

61 According to Alstom, the Commission made an error of law when applying the rules on attributing liability for infringements of Article 81 EC and Article 53 of the EEA Agreement by not applying, to the relationship between Alstom and its former subsidiaries operating in the T&D sector, the criterion of ‘economic continuity’, as identified in the case‑law in Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 356 to 359, and in Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 132, and by holding it personally liable for the participation of a part of its ‘T&D division’ in the infringement for the period from 15 April 1988 to 6 December 1992, without taking account of the fact that that undertaking had been transferred to its former subsidiaries active in the T&D sector, following restructuring operations within the Alstom Group. It takes the view, in essence, that while the Alstom Group’s ‘T&D division’ did not have legal personality prior to 7 December 1992, the creation, on that date, of a subsidiary specifically responsible for it, outside Switzerland, namely Kléber Eylau (subsequently Alstom T&D SA, then Areva T&D SA), should have allowed the Commission to identify – on the date when the contested decision was adopted – a legal person to which the undertaking which had participated in the infringement had been transferred and to which the infringement could thus be attributed. An analogous reasoning can be applied in respect of the transfer, on 22 December 2003, of the Alstom Group’s activities in the T&D sector in Switzerland to Alstom (Schweiz) Services AG (formerly Alstom T&D AG, then Areva T&D AG).

62 The Commission disputes Alstom’s arguments and contends that the ground of complaint should be rejected.

– Findings of the Court

63 In competition law, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the infringement in question (see, to that effect, Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Case T‑234/95 DSG v Commission [2000] ECR II‑2603, paragraph 124, and Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85). In prohibiting undertakings inter alia from entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (see, to that effect, Case T‑6/89 Enichem Anic v Commission [1991] ECR II‑1623, paragraph 235, and Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 311).

64 In order to be applied and enforced, decisions taken pursuant to Article 81 EC must, however, be addressed to entities possessing legal personality (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘PVC II’) [1999] ECR II‑931, paragraph 978, and Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 59). Thus, when the Commission adopts a decision pursuant to Article 81(1) EC, it must identify the natural or legal person or persons who can be held responsible for the conduct of the relevant undertaking and can be penalised for that conduct and the decision will be addressed to them (see, to that effect, Hydrotherm Gerätebau, paragraph 63 above, paragraph 11).

65 In accordance with the principle of personal liability (Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 131 to 141; Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 78; Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39; see, also, Opinion of Advocate General Kokott in ETI and Others [2007] ECR I‑10892, paragraphs 71 et seq.), under which a person can be held liable only for his own acts (Opinion of Advocate General Cosmos in Case C‑49/92 P Commission v Anic Partecipazioni [1990] ECR I‑4130, paragraph 74), it falls, in principle, to the person managing the undertaking when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, that undertaking is the responsibility or under the management of a different person (Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 27, and Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 37; see, also, to that effect, Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 79).

66 In certain exceptional circumstances, the case‑law accepts that it is possible to derogate from the principle of personal liability under the so-called ‘economic continuity’ criterion, under which an infringement of the rules on competition may be imputed to the economic successor of the legal person which committed it, even where the latter has not ceased to exist on the date of adoption of the decision finding the infringement, in order that the effectiveness of those rules will not be compromised owing to the changes to, inter alia, the legal form of the undertakings concerned (Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraphs 105 and 106).

67 In Aalborg Portland and Others v Commission, paragraph 61 above (paragraphs 356 to 359), the Court of Justice held that the General Court had not erred in holding that the Commission was entitled, in the context of an intragroup transfer of an undertaking, to hold the transferee company liable for the infringement committed by the undertaking, before its transfer, even where the transferor company continued to exist as a legal entity. To distinguish the situation outlined in paragraph 145 of Commission v Anic Partecipazioni, paragraph 65 above, under which there can be ‘economic continuity’ only where the legal person responsible for running the undertaking has ceased to exist in law after the infringement has been committed, the Court of Justice relied on the fact that the transferor company had transferred all of its economic activities to the transferee company while maintaining a structural link with the latter, in which it had a 50% shareholding.

68 In Jungbunzlauer v Commission, paragraph 61 above (paragraphs 132 and 133), the General Court held, with reference to Aalborg Portland and Others v Commission, paragraph 61 above, that the fact that a company continues to exist as a legal entity does not exclude the possibility that, pursuant to competition law, there may be a transfer of part of the activities of that company – constituting an undertaking for the purposes of competition law – to another company which becomes responsible for the acts of that undertaking. Therefore, the General Court held that the Commission had not erred in finding, in the context of an intragroup transfer of an undertaking, that the infringement committed, prior to that transfer, by that undertaking had to be attributed to the transferee company, even though the transferor company continued to exist as a legal entity. In that case, while the transferor company had retained the production activities of the relevant undertaking, it had inter alia transferred the management and governance of that undertaking to the transferee company, which could, to that extent, be regarded as the economic successor of the transferor company.

69 In paragraphs 38 to 42 of ETI and Others, paragraph 65 above, the Court of Justice justified the so‑called ‘economic continuity’ criterion by the need to ensure that penalties for infringements of competition law have deterrent effect. With reference to Aalborg Portland and Others v Commission, paragraph 61 above, the Court of Justice indicated, in paragraphs 48 to 51 of ETI and Others, that applying penalties in this way is permissible and does not breach the principle of personal responsibility, even if the entity that committed the infringement still exists on the date on which the entity to which it transferred its economic activities is penalised, where those two entities have been under the control of the same person and, given the close economic and organisational links between them, have carried out, in all material respects, the same commercial instructions. It thus held that Article 81 EC et seq. must be interpreted as meaning that, in the case of entities answering to the same public authority, where conduct amounting to one and the same infringement of the competition rules was adopted by one entity and subsequently continued until its cessation by another entity which succeeded the first, which has not ceased to exist, that second entity may be penalised for that infringement in its entirety if it is established that those two entities were subject to the control of the said authority.

70 The case‑law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement.

71 In the present case, at the outset, it is important to identify the ‘undertaking’, for the purposes of competition law, which participated in the infringement for which Alstom was held liable in Article 1(b) of the contested decision. It is apparent from the description given in recitals 5 to 87 of the contested decision, relating to ‘the industry subject to the proceeding’, and in recitals 16 to 22, relating to ‘the undertakings subject to the proceedings’, that the relevant undertaking corresponds to the unitary organisation of personal, tangible and intangible elements which, first within the Alstom Group and, then, after the intergroup transfer on 8 January 2004 (see paragraph 9), within the Areva Group, operated in the GIS sector (‘the undertaking in question’). Therefore, Alstom is wrong to assert that the undertaking in question consists of the Alstom Group’s ‘T&D division’ or, more broadly, of all the elements which contributed, at the material times, to activities in that sector.

72 It is also apparent from recitals 357 and 358 of the contested decision that, to find Alstom liable for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992, the Commission observed that, before 7 December 1992, GIS activities within the Alstom Group were carried out directly by Alsthom SA, then GEC Alsthom SA, and not by its predecessors Areva T&D SA and Areva T&D AG. The Commission also noted that, before December 2002, the Alstom Group’s activities in the T&D sector in Switzerland had been carried out by Sprecher Energie (acquired by Alstom SA in January 1986), which became Alstom AG (Switzerland). After having found that the legal entities in question still existed within the Alstom Group under new business names, the Commission considered that Alstom, as parent company of those various wholly‑owned subsidiaries, retained responsibility for their activities before the creation of Areva T&D SA’s and Areva T&D AG’s predecessors. The Commission inferred therefrom that Areva T&D SA and Areva T&D AG should not be held liable for the participation of the undertaking in question in the infringement for the relevant period, as legal and economic successors, despite the fact that the Alstom Group’s activities in the T&D sector had then been transferred to their respective predecessors.

73 Alstom raises no specific plea or complaint disputing the grounds of the contested decision which attribute liability to it for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992, on the ground that, at the material time, it controlled that undertaking through the intermediary of wholly‑owned or majority‑owned subsidiaries. Alstom merely claims that the liability it incurred in that regard was transferred to Areva T&D SA and Areva T&D AG in accordance with the so‑called ‘economic continuity’ criterion identified in Aalborg Portland and Others v Commission and Jungbunzlauer v Commission, paragraph 61.

74 It must first be stated that recital 339 of the contested decision, to which recital 357 refers, cannot be considered as supporting the Commission’s decision not to transfer, to Areva T&D SA and Areva T&D AG, liability for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992. Recital 339 of the contested decision concerns the possibility, in the light of the principles identified in paragraphs 356 to 359 of Aalborg Portland and Others v Commission and in paragraph 132 of Jungbunzlauer v Commission, paragraph 61, of transferring liability between the companies of the same group pursuant to the so‑called ‘economic continuity’ criterion. In that recital, the Commission states that the fact that a company retains legal personality, after having transferred part of its activities to another company within the same group, does not prevent the Commission from holding the latter company liable for the infringement committed by the former. It follows that the reference to recital 339 of the contested decision, which is made in recital 357, cannot be taken into account when assessing the validity of the finding that there was no transfer, to Areva T&D SA and Areva T&D AG, of liability for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992.

75 In its defence in Case T‑121/07, the Commission contends that it restricted itself, in the contested decision, to applying the rules resulting from the principle of personal liability (see paragraph 65). If follows from recitals 357 and 358 of the contested decision, the content of which is summarised in paragraph 72, that Alstom is held liable for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992 on the ground that, at the material time, Alstom managed that undertaking through the intermediary of wholly‑owned or majority‑owned subsidiaries still existing within the Alstom Group.

76 It is therefore necessary to decide whether, as Alstom claims, the liability for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992 must be transferred to Areva T&D SA and Areva T&D AG on the ground that the undertaking in question was transferred to their respective predecessors, namely Kléber Eylau and Alstom (Schweiz) Services, by GEC Alstom SA on 7 December 1992, and by Alstom AG (Suisse) on 22 December 2003.

77 In that regard, it must be noted that Alstom’s line of argument would mean that Areva T&D SA and Areva T&D AG would be answerable for an infringement personally attributable to GEC Alsthom SA and Alstom AG (Suisse), which, as part of the Alstom Group, were, at the material times, wholly‑owned or majority‑owned subsidiaries of Alstom or its predecessors.

78 In such a situation, the so‑called ‘economic continuity’ criterion can, however, be applied only to the extent that the undertaking in question was no longer the responsibility or under the management of Alstom following the restructuring operations within the Alstom Group on 7 December 1992 and 22 December 2003. In the event that, on the other hand, Alstom never ceased, through the medium of its wholly‑owned or majority‑owned subsidiaries, to manage the undertaking in question up until the intergroup transfer on 8 January 2004, it would remain personally liable for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 6 December 1992 and the Commission would not have committed an error of law by not invoking, with regard to the relationship between Alstom and its subsidiaries in the T&D sector, the ‘economic continuity’ criterion, in the light of the intragroup restructuring operations referred to above (see, to that effect, Opinion of Advocate General Mischo in SCA Holding v Commission, paragraph 65, [2000] ECR I‑10104, paragraph 26).

79 For all of those reasons, it is appropriate, before ruling on the present ground of complaint, to reply to the pleas and grounds of complaint disputing the finding, in Article 1(b) of the contested decision, that Alstom, as the parent company of the wholly‑owned subsidiaries Alstom T&D SA and Alstom T&D AG, is liable for the participation of the undertaking in question in the infringement for the period from 7 December 1992 to 8 January 2004.

The personal liability incurred by Alstom, as the parent company of the wholly‑owned subsidiaries Alstom T&D SA and Alstom T&D AG, on account of the participation of the undertaking in question in the infringement for the period from 7 December 1992 to 8 January 2004

– Arguments of the parties

80 Alstom, in the first part of its fourth plea, alleging infringement of the rules on attributing liability for infringements of Article 81 EC and Article 53 of the EEA Agreement, claims that, in the contested decision, the Commission attributed liability to it, as the parent company of the wholly‑owned subsidiaries Alstom T&D SA and Alstom T&D AG, for the participation of the undertaking in question in the infringement for the period from 7 December 1992 to 8 January 2004.

81 By its third plea, Alstom claims that the Commission infringed Article 253 EC by not reasoning, to the requisite legal standard, the finding that Alstom should be held liable, as the parent company of the wholly‑owned subsidiaries Alstom T&D SA and Alstom T&D AG, in view of the evidence which it submitted during the administrative procedure. At the hearing, it also alleged, in that regard, failure to observe the rights of the defence and breach of the principle of equality of arms in proceedings before the judicature of the European Union.

82 In the context of its seventh plea, Alstom alleges failure to observe the rights of the defence and infringement of Article 27(1) of Regulation No 1/2003 on the basis that the Commission, in attributing liability to Alstom, as the parent company of the wholly‑owned subsidiaries Alstom T&D SA and Alstom T&D AG, for the participation of the undertaking in question in the infringement for the period from 7 December 1992 to 8 January 2004, accepted in the contested decision factual evidence concerning Alstom, submitted by the companies of the Areva Group, without having informed it beforehand that that evidence might be used against it and without allowing it to give its point of view. That applies to the evidence, referred to in recitals 351 and 354 of the contested decision, relating to the finding against Alsthom SA – one of it predecessors – in a decision of the French Competition Board (Conseil de la concurrence français) of 1 March 1988 and the fact that six members of the board of Alsthom T&D SA, simultaneously or consecutively, held management posts within Alstom SA.

83 The Commission disputes Alstom’s arguments and contends that those pleas and grounds of complaint should be rejected.

– Findings of the Court

84 For the purposes of applying competition law, the formal separation of two companies as a result of their having distinct legal identity is not decisive. The test is whether or not there is unity in their conduct on the market (see, to that effect, ICI v Commission, paragraph 65 above, paragraph 140). Thus, it may be necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (DaimlerChrysler v Commission, paragraph 63 above, paragraph 85).

85 Thus, according to settled case‑law, the fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company, particularly where the subsidiary does not determine independently its conduct on the market but in all material respects carries out the instructions given to it by the parent company (ICI v Commission, paragraph 65 above, paragraphs 132 and 133, and PVC II, paragraph 64 above, paragraph 960). Where a subsidiary does not enjoy real autonomy in determining its course of action in the market, the prohibitions set out in Article 81(1) EC may be considered inapplicable in the relationship between it and the parent company with which it forms one economic unit (ICI v Commission, paragraph 65 above, paragraph 134; Case T-102/92 Viho v Commission [1995] ECR II‑17, paragraph 51).

86 In that context, it is, in principle, for the Commission to demonstrate that the parent company exercises a decisive influence on its subsidiary’s conduct on the market on the basis of factual evidence, including, in particular, any management power which the parent company exerted over its subsidiary (see Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136, and the case‑law cited). However, the settled case-law of the Court of Justice and the General Court is that the Commission may reasonably presume that a wholly‑owned subsidiary carries out, in all material respects, the instructions given to it by its parent company and that that presumption implies that the Commission is not required to check whether the parent company has actually exercised that controlling power over its subsidiary. When, in the statement of objections, the Commission indicates its intention to hold a parent company personally liable for an infringement for which its subsidiary was responsible, relying on the presumption of liability which results from the fact that the parent company holds all the capital of that subsidiary, it is for the parent company which intends to dispute the liability attributed to it to produce, during the administrative procedure or, at the latest, before the Court, sufficiently conclusive evidence to rebut the presumption by demonstrating that, despite the parent company holding all of its capital, the subsidiary actually determined its conduct on the market independently (see Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraphs 82 and 83, and the case‑law cited).

87 The Commission must be able to take into account, in the decision finding an infringement, the replies by the undertakings concerned to the statement of objections. In that regard, it must be able not only to accept or reject the arguments of the undertakings concerned but also make its own analysis of the matters put forward by them in order either to abandon such objections as have been shown to be unfounded or to supplement or adapt its arguments both in fact and in law in support of the complaints which it maintains (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 93; see, also, to that effect, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 91 and 92; Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 437 and 438, and Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 68).

88 As regards the duty on the Commission to state reasons, in particular where it adopts a decision finding an infringement of competition rules, it is important to bear in mind that, according to settled case‑law, the complaint alleging an absence of reasons or inadequacy of the reasons stated must be distinguished from an objection based on the inaccuracy of the grounds of the decision (by reason of an error in fact or in the legal assessment). The latter falls within the assessment of the substantive legality of the contested decision and not of essential procedural requirements and cannot therefore constitute an infringement of Article 253 EC (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraphs 67 and 72; Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 114; Joined Cases C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P International Power and Others v NALOO [2003] ECR I‑11421, paragraph 145, and Case T‑84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 47). As an essential procedural requirement, the statement of reasons required under Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution that adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it in order to defend their rights and to enable the competent court to exercise its power of review (Case C‑338/00 P Volkswagen v Commission [2003] ECR I‑9189, paragraph 124). Although the Commission is required under Article 253 EC to set out all the matters of fact and law justifying the adoption of a decision and the legal considerations which led it to adopt that decision, that article does not require the Commission to discuss all the matters of fact and law which may have been dealt with during the administrative procedure (Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 22; Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 55, and Volkswagen v Commission, paragraph 127). The requirements to be satisfied by the statement of reasons depend on the circumstances of each 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 (see Commission v Sytraval and Brink’s France, paragraph 63, and the case‑law cited).

89 The foregoing case‑law is applicable, by analogy, to the decisions of the Commission finding an infringement of Article 53(1) of the EEA Agreement.

90 In the present case, in paragraphs 331 and 337 of the statement of objections, the Commission indicated its intention to find Alstom jointly and severally liable with Areva T&D SA and Areva T&D AG for the participation of the undertaking in question in the infringement for the period from 15 April 1988 to 8 January 2004, on the basis of the presumption of liability resulting from the fact that the parent company held the entire capital of the subsidiaries (see paragraph 86).

91 It follows from recitals 335, 348 to 356 and 358 of the contested decision that, to find Alstom jointly and severally liable with Areva T&D SA for the participation of the undertaking in question in the infringement for the period from 7 December 1992 to 8 January 2004, the Commission, in the final analysis, relied not only on the presumption of liability resulting from the fact that the parent company held the entire capital of the subsidiaries, but also on factual evidence submitted during the administrative procedure. The Commission thus referred, in recital 351 of the contested decision, to a decision of the French Competition Council of 1 March 1998, fining Alsthom under French competition law for bid-rigging practices also concerning electrical equipment (medium voltage transformers). It also referred, in recital 353 of the contested decision, to evidence submitted by Alstom itself, which tended to show that, within the Alstom Group, the operative organisation had primacy over the legal structure and that, as with the T&D division, GIS project activities were managed, at the highest level, by Alstom and its predecessors. Lastly, it referred, in recitals 354 and 355 of the contested decision, to the evidence submitted by the companies of the Areva Group, which allowed it to identify six members of the board of Alstom T&D SA who had been, either simultaneously or consecutively, members of the board of the ‘ultimate parent companies’ of the Alstom Group, prior to January 2004, up to the post of chief executive.

92 Alstom does not dispute the assessments of fact in the contested decision, according to which Alstom T&D SA and Alstom T&D AG were wholly‑owned subsidiaries throughout the period from 7 December 1992 to 8 January 2004. Contrary to what Alstom claims, those findings alone allowed the Commission to presume that Alstom T&D SA and Alstom T&D AG did not enjoy real autonomy vis-à-vis Alstom in determining their course of action on the market and that those companies therefore constituted, with Alstom, one and the same undertaking for the purposes of competition law. In accordance with the case‑law cited in paragraph 86, it is therefore for Alstom – which claims that those subsidiaries, operating in the T&D sector, determined their conduct on the market independently for the period at issue – to rebut the presumption of liability resulting from the fact that the parent company held the entire capital of the subsidiaries, by producing evidence of sufficient probative value in that regard.

93 In paragraphs 90 to 150 of its reply to the statement of objections, Alstom contended that the undertaking in question corresponded to the ‘T&D division’ of the Alstom Group and that, since that division determined its own conduct on the market independently, only the operational subsidiaries responsible for that sector could be held liable for that conduct. According to Alstom, the dichotomy existing within the Alstom Group, between the operational organisation and the legal structure, confirms the lack of a relationship between the capital strands and the conduct on the market of the divisions and their different activities, which functioned and took their decisions in a wholly decentralised and autonomous manner. Alstom, as the parent company of the Alstom Group, had not the means, in terms of personnel, organisation, or expertise, to influence decisively commercial policy within its divisions. It therefore restricted itself to deciding and supervising, through its executive committee, global strategy and financial objectives to be implemented by those divisions, the business risks inherent in their activities and the decisions of operational subsidiaries responsible for those risks, where they were capable of giving rise to a financial risk for the entire Alstom Group. The ‘T&D division’ of the Alstom Group thus elaborated its own rules, determining the way in which its various commercial activities should be structured and managed. As regards, in particular, the conduct of activities in the GIS sector, Alstom’s role was limited to approval, within the executive committee and on the basis of summary information, of proposed bids for GIS projects above a certain threshold or involving specific ‘substantial risks’ for the Alstom Group. In that context, it was strictly impossible for Alstom, having regard to the limited commercial information which was made available to it, to have been aware of the participation of one part of the ‘T&D division’ of the Alstom Group in the infringement. The few individuals, participating in activities in the GIS sector and belonging to the operational subsidiaries responsible for those activities, that is to say, Alstom T&D SA and Alstom T&D AG, who had attended the cartel meetings thus had done so without the knowledge of Alstom and its directors.

94 In support of its line of argument in reply to the statement of objections, Alstom produced various documents, which were added to the case‑file in Case T‑121/07, and for which confidential treatment was granted (see paragraphs 19 and 38). They include the ‘Information Memorandum’ drafted in March 2003 for the sale of the Alstom Group’s ‘T&D division’ to the Areva Group, a copy of that division’s internal instructions which were available, from 1999, on the website of the Alstom Group, Alstom’s ‘e-Book’, two blank forms for approval of bids for GIS projects and, lastly, a copy of the minutes of all the meetings of the Alstom Group’s executive committee which took place between the beginning of 1999 and the end of 2003.

95 In recital 348 of the contested decision, the Commission stated that, in paragraphs 90 to 150 of its reply to the statement of objections, as summarised in recitals 345 to 347 of the contested decision, Alstom did not provide valid explanations or convincing arguments which would have allowed the conclusion that it had not been in a position to exercise decisive influence on the commercial policy of its subsidiaries which were active in the T&D sector.

96 The parties disagree, first, on the issue whether the Commission reasoned, to the requisite legal standard, its rejection of evidence submitted by Alstom during the administrative procedure as not being of sufficient probative value.

97 In recitals 350 to 356 of the contested decision, the Commission explained, in a detailed manner, the reasons for which it considers that the evidence submitted by Alstom during the administrative procedure was not of sufficient probative value, in particular, in the light of contrary evidence submitted by the companies of the Areva Group. In recitals 350 to 353 of the contested decision, the Commission stated that the delegation of commercial functions at the level of the ‘T&D division’, or relating to the Alstom Group’s activities in the GIS sector, could not relieve Alstom of its responsibility, since, as it admitted itself, at the time of the infringement, it had to approve every proposed bid for GIS projects above a certain threshold or comprising certain ‘substantial risks’ for the Alstom Group. Taking account of the substantial fine imposed on Alsthom by the French Competition Council by decision of 1 March 1988, it was unlikely that Alstom would not have identified infringement of competition law as a substantial risk requiring heightened scrutiny. Furthermore, the evidence submitted by Alstom to establish the primacy, within the Alstom Group, of the operational organisation over the legal structure also tended to establish that, through the intermediary of operational directors of the ‘T&D division’ of the Alstom Group, which was part of the group and accountable to it, Alstom exercised decisive influence on the GIS‑sector activities of its subsidiaries which were active in the T&D sector. In recitals 354 to 356 of the contested decision, the Commission, moreover, considered that Alstom’s contention, that its directors were not informed of the participation of the undertaking in question in the infringement, was not credible, in the light of the evidence submitted by the companies of the Areva Group, which established that a number of individuals occupied, simultaneously or conse