EN Official Journal of the European Union C 298/15

Appeal brought on 29 July 2011 by Elf Aquitaine SA against the judgment delivered by the General Court (Second Chamber) on 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission

(Case C-404/11 P)

2011/C 298/28

Language of the case: French

Parties

Appellant: Elf Aquitaine SA (represented by: E. Morgan de Rivery and E. Lagathu, avocats)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

— Primarily: — on the basis of Articles 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, set aside in full the judgement of the General Court of 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission; — grant the form of order which it sought at first instance before the General Court; — consequently, annul Articles 1(f), 2(c), 2(e), 3 and 4 of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate);

— In the alternative , amend, on the basis of Article 261 TFEU, the fine of EUR 22 700 000 imposed on Arkema SA and Elf Aquitaine joint and severally in Article 2(c) of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate), and the fine of EUR 15 890 000 imposed on Elf Aquitaine personally in Article 2(e) of that decision, in accordance with its unlimited jurisdiction, as a result of the objective errors in the grounds and the reasons for the judgment of the General Court of 17 May 2011 in Case T-299/08, as set out in its six grounds of appeal;

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

Pleas in law and main arguments

In support of its appeal, the appellant raises six main grounds of appeal and one in the alternative.

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

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

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

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

By its fifth ground of appeal, the appellant invokes an infringement of the duty to state reasons in that the General Court briefly took note of the rejection of its arguments by the Commission, without providing any analysis of the Commission's arguments (first part). Moreover, Elf Aquitaine SA accuses the General Court of failing to give reasons in relation to the presumption of imputability (second part), and insufficient reasons in relation to the personal fine imposed on the appellant (third part).

By its sixth plea, the appellant claims that the personal fine was unlawful as the Guidelines on the method of setting fines was misapplied (first part), a false legal basis was created to impose a personal fine (second part), and the grounds given for the judgment under appeal based on the concept of single undertaking and the imposition of an personal fine were contradictory (third part).

By its seventh and final ground of appeal (in the alternative), the appellant submits that the amount of the personal fine imposed on it for the purposes of deterrence were disproportionate and justify an amendment thereof.