Case C-597/13 P: Appeal brought on 22 November 2013 by Total SA against the judgment of the General Court (Fourth Chamber) delivered on 13 September 2013 in Case T-548/08 Total SA v European Commission
Date: 2013-11-22
Institutions: Court of Justice
Subjects: equal treatment, fine, principle of proportionality, subsidiary








C_2014045EN.01001801.xml










15.2.2014   


EN


Official Journal of the European Union


C 45/18





Appeal brought on 22 November 2013 by Total SA against the judgment of the General Court (Fourth Chamber) delivered on 13 September 2013 in Case T-548/08 Total SA v European Commission
(Case C-597/13 P)
2014/C 45/33
Language of the case: French

Parties


Appellant: Total SA (represented by: E. Morgan de Rivery, E. Lagathu, lawyers)

Other party to the proceedings: European Commission

Form of order sought

Principally:






—


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 13 September 2013 in Case T-548/08 Total v European Commission;










—


grant the form of order which it sought at first instance before the General Court;










—


consequently, annul Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle waxes in so far as it concerns Total;




In the alternative, exercise its power to amend on the basis of Article 261 TFEU in order to reduce the amount of the fine imposed on Total.
In any event, order the European Commission to pay the costs in their entirety, including those incurred by Total before the General Court.

Pleas in law and main arguments

In support of its appeal, the appellant raises three main grounds and three in the alternative.
In the first place, the appellant alleges that the General Court infringed the principle of audi alteram partem by giving two judgments on the same day which resulted in a modification of the nature of the liability attributed to the appellant and, consequently, in its being rendered more serious.
In the second place, the appellant alleges errors of law relating to the grounds for the judgment of the General Court. First, the General Court erred in law in the course of its review of the lawfulness of the decision, by failing to annul the decision on the ground that the Commission infringed its obligation to state reasons. Secondly, the General Court failed to comply with its obligation to state reasons in the context of its power to amend on the basis of Article 261 TFEU.
In the third place, the appellant submits that the General Court made errors of law in the context of its power to amend on the basis of Article 261 TFEU by refusing to reduce the appellant’s fine in the same proportions as the fine imposed on the subsidiary company Total Raffinage Marketing. The General Court, first, incorrectly assessed the extent of its power to amend by modifying the joint and several nature of the liability of the appellant and the subsidiary, even though it is authorised only to modify the amount of the fine. Secondly, the appellant considers that the General Court failed to have regard to the caselaw of the Court of Justice concerning the joint liability of a parent company arising from the infringing conduct of the subsidiary company, and infringed the principles of equality, non-discrimination and proportionality.
In the fourth place, the appellant requests the Court of Justice, in the alternative, to exercise its own power to amend in order to annul or amend the amount of the fine.
In the fifth place, it requests the Court of Justice to amend, on a limited basis, the amount of the fine for the purpose of making it compatible with that imposed on the subsidiary Total Raffinage Marketing in Case T-566/08.
In the last place, it requests the Court of Justice to amend the basic amount of the fine for the purpose of making it compatible with that of the fine imposed on the subsidiary Total Raffinage Marketing in Case T 566/08, either, in the event of an appeal, in the judgment of the Court of Justice given on appeal where the latter considers that the case has reached a stage permitting a final decision, or in the judgment given by the General Court on a referral from the Court of Justice.