EN Official Journal of the European Union C 90/20

Appeal brought on 3 March 2009 by General Química, SA, Repsol Química, SA and Repsol YPF, SA against the judgment delivered on 18 December 2008 in Case T-85/06 General Química and Others v Commission of the European Communities

(Case C-90/09 P)

2009/C 90/32

Language of the case: Spanish

Parties

Appellants: General Química SA, Repsol Química SA and Repsol YPF, SA (represented by: J.M. Jiménez-Laiglesia Oñate and J. Jiménez-Laiglesia Oñate, abogados)

Other party to the proceedings: Commission of the European Communities

Forms of order sought

The appellants claim that the Court should:

— set aside the judgment of 18 December 2008 in Case T-85/06 in so far as it rejects the plea in law alleging manifest error of assessment and failure to state sufficient reasons for the finding that the applicants are jointly and severally liable;

— annul Article 1(g) and (h) and Article 2(d) of the Decision in so far as they declare that Repsol YPF and Repsol Química, together with General Chímica, are jointly and severally liable for an infringement of Article 81(1) of the EC Treaty and, in the lesser alternative, in so far as the Decision finds against Repsol YPF, in both cases ordering an appropriate reduction of the penalty.

Pleas in law and main arguments

The appeal criticises the rejection, in the judgment under appeal, of the plea in law whereby annulment of the Decision was sought on grounds relating to the attribution of liability to Repsol Química and Repsol YPF in respect of conduct on the part of General Química, SA. In the judgment under appeal, the Court of First Instance errs in using a criterion for the attribution of liability which is unrelated to the facts and circumstances of the case or to the infringement committed by General Química. The Court of First Instance wrongly attributes to the parent company liability which lies with a subsidiary, by concluding that only one economic entity exists, merely because the parent company may, or is able to, wield a decisive influence over the subsidiary. Nor does the Court of First Instance make it clear how the evidence which it selects reveals the existence of decisive influence; at the same time, evidence in the case-file is either ignored or distorted. Moreover, the Court of First Instance misapplies the presumption established by case-law in respect of cases where the parent company holds all of the share capital, and reverses the burden of proof without explaining, moreover, the kind of evidence that must be produced in order to rebut the presumption. The judgment places no limits on the discretion enjoyed by the Commission in relation to the assessment and appraisal of the evidence produced in an attempt to rebut the presumption. This means that, in reality, the presumption is not open to rebuttal. Similarly, and apart from the fact that the liability of Repsol YPF is neither precisely identified nor free of ambiguity, the Court of First Instance wrongly extends automatically to the parent company at the head of the group the presumption based on the mere capacity to exercise a decisive influence. Liability is attributed to the group of companies and not to the undertaking as an economic unit, such liability being moreover irrefutable.