European Commission v Total SA and Elf Aquitaine SA.
Date: 2017-01-19
19


Although the question whether the grounds of a judgment of the General Court are contradictory or inadequate is a point of law which is amenable, as such, to judicial review on appeal (see, in particular, judgments of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 45, and of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 123), such is not the case of an assessment of facts which, save where the clear sense of the evidence has been distorted, which has not been argued in the present case, is not, according to settled case-law, subject to review by the Court of Justice (see, to that effect, in particular, judgments of 10 July 2014, Greece v Commission, C‑391/13P, not published, EU:C:2014:2061, paragraph 29, and of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40).
30


As regards the admissibility of that ground of appeal, in relation to its second and third parts, it follows from the provisions of Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by the General Court, does not satisfy the requirement to state reasons under those provisions (see, in particular, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 46 and the case-law cited).
31


However, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 51, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 47).
35


As to the substance of the first ground of appeal, the parts of which must be examined together, it must be recalled, as a preliminary point, that it follows from settled case-law as regards the admissibility of an action for annulment that, in order to determine whether an act may be subject to such an appeal, importance must be given to the substance of that act, the form in which an act or decision is adopted being in principle irrelevant to the right to challenge such acts (see to that effect, in particular, judgments of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27, and of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 43).
36


In that connection, it is also clear from settled case-law that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment (see, in particular, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 29; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 9 December 2014, Schönberger v Parliament, C‑261/13 P, EU:C:2014:2423, paragraph 13).
37


Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as acts open to challenge, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced (see, to that effect, in particular, judgments of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55; of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 29; and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).
44


Second, it must be recalled that, in a situation where the liability of a parent company is purely derivative of that of its subsidiary and in which no other factor individually reflects the conduct for which the parent company is held liable, the liability of that parent company cannot exceed that of its subsidiary (see, to that effect, judgments of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 37, 39, 43 and 49, and of 17 September 2015, Total v Commission, C‑597/13 P, EU:C:2015:613, paragraph 38).
48


Therefore, even if the letters by which the Commission simply claims from the addressees of a decision concerning the infringement of competition rules (such as the Methacrylates decision) the payment of the fine which is imposed by that decision, or default interest which may arise from it, those letters may, in principle, only constitute an enforcement notice of the decision concerned, and, therefore, are unable to produce binding legal effects of such a nature as to affect the interests of the undertakings concerned (see, to that effect, judgment of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 29), that is not the case, having regard to their content, of the contested letters, in that they demand that the respondents pay default interest in spite of the payment in full of the original amount of the fine and, therefore, is, in fact, a modification of the pecuniary obligation for which they are liable.