Joined Cases C‑247/11 P and C‑253/11 P

Areva SA

and

Alstom SA and Others

v

European Commission

‛Appeals — Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Attributability of unlawful conduct of subsidiaries to their parent companies — Obligation to state reasons — Joint and several liability for payment of a fine — Concept of an ‘undertaking’ — ‘De facto’ joint and several liability — Principle of legal certainty and the principle that penalties must be specific to the offender and the offence — Principles of proportionality and equal treatment’

Summary — Judgment of the Court (Fourth Chamber), 10 April 2014

Appeals — Jurisdiction of the Court — Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty — Excluded — Whether it may review that assessment on grounds based on infringement of the principle of proportionality — Lawfulness — No infringement of the principle of proportionality

Competition — Fines — Joint and several liability for payment — Determination of the share of the fine to be paid by those held jointly and severally liable from the perspective of their internal relationship — Jurisdiction of the national courts

Appeals — Grounds — Appeal against a judgment ruling on joined cases — Possibility for any party to raise a ground of appeal against any part of the General Court’s reasoning, irrespective of the pleas which it raised before that court

Competition — Fines — Joint and several liability for payment — Scope — Unlawful conduct of the subsidiary attributed to the parent company — Joint and several liability of parent companies which formed, in succession, during the infringement period, a separate undertaking with the subsidiary which committed the infringement — Determination of the amount of the fine to be paid by the successive parent companies– Respect of the principle that penalties must be specific to the offender and the offence — Respect of the principle of legal certainty

Appeals — Grounds — Plea submitted for the first time in the appeal — Pleas raised against a ground of the judgment under appeal — Plea contesting the validity of the judgment under appeal — Plea arising from the judgment under appeal itself — Admissibility

Appeals — Grounds — Plea submitted for the first time in the appeal — Inadmissibility — Arguments constituting merely an amplification of a plea set out in the application — Admissibility

Actions for annulment — Jurisdiction of the EU judicature — Interpretation of the reasoning of an administrative measure — Limits — Substitution of the reasoning of the General Court for that of the Commission when examining the evidence relied on by the appellants — Lawfulness — Infringement of the rights of the defence — None

Acts of the institutions — Statement of reasons — Obligation — Scope — Fine imposed for infringement of the competition rules to be paid jointly and severally by two separate companies which no longer form, at the time the fine is imposed, a single economic unit — Requirement for specific reasons to be given in relation to each of the companies concerned — No such requirement

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules affecting several addressees — Practices of a subsidiary attributed to the parent company — Need for an adequate statement of reasons — Combination of the presumption that a parent company actually exerts a decisive influence over its wholly-owned subsidiaries with other evidence

Competition — EU Rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Presumption to be examined with due regard for the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender, the principle of legal certainty and the principle of equality of arms

See the text of the decision. (see paras 30-33, 79-81, 91-93)

Where a decision concerning the application of European Union competition rules affects several addressees and relates to the attribution of liability for the infringement of those rules, the decision must contain an adequate statement of reasons with respect to each of the addressees, in particular those who, according to that decision, must bear the liability for the infringement. Accordingly, with regard to a parent company held responsible for the unlawful conduct of its subsidiary, such a decision must, as a general rule, contain a statement of reasons capable of justifying the attribution of liability for that infringement to the parent company. With regard to a Commission decision which bases its determination as to whether an infringement committed by a subsidiary may be imputed to the parent company on a ‘dual basis’ method, combining the presumption that the parent company actually exercised decisive influence over its wholly-owned subsidiary with evidence set out in detail in that decision, a global assessment of the arguments put forward by the parent company in its response to the statement of objections is, in principle, commensurate with the degree of reasoning required on the part of the Commission, since it enables the parent company to be apprised of the reasons why the Commission has decided to impute liability to it for the infringement committed by its subsidiary. (see paras 34, 41, 42)

See the text of the decision. (see paras 47-52)

In reviewing the legality of acts under Article 263 TFEU, the Court of Justice and the General Court cannot under any circumstances substitute their own reasoning for that of the author of the contested act. However, the General Court cannot be criticised for substituting its own reasoning for that of the Commission, with regard to the question whether an infringement committed by a subsidiary may be imputed to the parent company, if the grounds of the judgment in question refer to evidence relied on by the applicants before the General Court to rebut the presumption of actual exercise of decisive influence, which the General Court is required to examine in its review of the legality of the decision at issue. Moreover, the rights of defence of one of the applicants are not infringed where the General Court refers to the reasons given in the contested decision in response to arguments advanced by applicants belonging to the same group of companies. (see paras 56, 57, 78)

See the text of the decision. (see paras 113-117)

See the text of the decision. (see para. 118)

In determining, from its external perspective, joint and several liability for payment of a fine for which a number of legal persons are held jointly and severally liable, because they form part of a single undertaking that may be held responsible for an infringement of EU competition rules, the Commission is subject to certain restrictions. Accordingly, the Commission must adhere to the principle that penalties must be specific to the offender and the offence, which requires, in accordance with Article 23(3) of Regulation No 1/2003, that the amount of the fine to be paid jointly and severally must be determined by reference to the gravity of the infringement for which the undertaking concerned is held individually responsible and the duration of the infringement. As a consequence, where the Commission intends to make a subsidiary that has committed an infringement jointly and severally liable with each of the parent companies with which it has, in succession, formed a separate undertaking during the infringement period, that principle requires that institution to fix separately, for each of the undertakings involved, the amount of the fine for which the companies forming part of the undertaking are jointly and severally liable, according to the gravity of the infringement for which each of the undertakings concerned is individually responsible and the duration of that infringement. In that context, the Commission must also respect the principle of legal certainty, which requires that any measure adopted by the institutions of the European Union should be clear and precise, so as to enable the persons concerned to ascertain precisely what their rights and obligations are under the measure and take steps accordingly. The Court must find that there has been infringement of the principle of legal certainty where the method chosen by the Commission to establish joint and several liability between the subsidiary which committed the infringement of the competition rules and its successive parent companies does not enable the parent companies to ascertain precisely the amount of the fine they are required to pay in respect of the period during which they were held jointly and severally liable, with their subsidiary, for the infringement. (see paras 120, 126-128, 133, 139)

See the text of the decision. (see para. 148)

The powers available to the Commission under Article 23(2) of Regulation No 1/2003 to impose a fine for which a number of legal persons forming part of a single undertaking are jointly and severally liable is confined to determining the amount of the fine for the payment of which those legal persons are held jointly and severally liable, that is, the external determination of joint and several liability, and does not extend to determining the share of that amount to be borne by those persons who are jointly and severally liable in the context of their internal relationship. On the other hand, where there is no contractual agreement as to the shares to be paid by those held jointly and severally liable for payment of the fine, it is for the national courts to determine those shares, in a manner consistent with EU law, by applying national law. It follows that each company cannot be required to infer from the decision imposing joint and several liability for payment of a fine with a number of other companies the share of the fine to be borne by it in its relationship with the other entities, once the fine has been paid in full to the Commission. Accordingly, the fact that that share was not determined in the Commission’s decision imposing joint and several liability for payment of a fine cannot, of itself, constitute an infringement of the principle of legal certainty. Moreover, as the power to determine how a fine imposed jointly and severally is to be allocated internally rests with a national court or arbitration panel, not with the Commission, the latter cannot in any event be criticised for unlawfully delegating such a power on the basis that it failed to determine in the contested decision the shares to be paid by those jointly and severally liable for the fine in the context of their internal relationship. (see paras 149, 151, 152, 157, 158)

See the text of the decision. (see paras 171-176)