Judgments nº T-332/09 of The General Court, December 12, 2012

• Resolution Date: December 12, 2012
• Issuing Organization: The General Court
• Decision Number: T-332/09

(Competition — Concentrations — Decision imposing a fine for putting into effect a concentration — Obligation to suspend the concentration — Obligation to state reasons — Error of assessment — Limitation period — Amount of the fine)

In Case T‑332/09,

Electrabel, established in Brussels (Belgium), represented by M. Pittie and P. Honoré, lawyers,

applicant,

v

European Commission, represented by A. Bouquet and V. Di Bucci, acting as Agents,

defendant,

APPLICATION, principally, for annulment of Commission Decision C(2009) 4416 of 10 June 2009 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Council Regulation (EEC) No 4064/89 (Case COMP/M.4994 — Electrabel/Compagnie nationale du Rhône) and, in the alternative, for annulment or reduction of the amount of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 30 November 2011,

gives the following

Judgment

Facts of the case

1 The applicant, Electrabel, is a company governed by Belgian law and active, essentially, in production, sale, trading and operational management of networks in the electricity and natural gas sectors. At the material time it was part of the Suez group, an industrial group active in the management of public utility services as a partner of local authorities, undertakings and individuals in the electricity, gas, energy services, water and public health sectors. Since 22 July 2008 it has formed part of the GDF Suez group, which came about as a result of the merger of the Gaz de France group with the Suez group. It carries out its activities in France through its subsidiary Electrabel France.

2 Compagnie nationale du Rhône (CNR) is a French public undertaking with the task of developing and managing the Rhône Valley under a concession granted by the French State and with a specific legal framework, as is apparent, in particular, from French Law No 80-3 of 4 January 1980 on CNR (JORF, 5 January 1980, p. 41). CNR produces and markets electricity. It also provides river engineering services in France and in 20 or so other countries. It is stated in its articles of association that it is a general-interest limited company controlled by the State under the same conditions as national public undertakings. It has a supervisory board and a management board.

3 French Law No 2001-1168 of 11 December 2001 establishing urgent measures for economic and financial reforms (JORF, 12 December 2001, p. 19703; ‘the Murcef Law’) provides in Article 21 that CNR is a limited company, the majority of whose capital and voting shares must be held by local or regional authorities and also by other legal persons governed by public law or by undertakings belonging to the public sector. Until 2003 CNR’s capital was held exclusively by public entities or public undertakings whose capital was at the time wholly owned by the State. Until that time CNR’s two largest shareholders were Société nationale des chemins de fer français (SNCF) and Électricité de France (EDF).

4 Within the framework of a project for the acquisition of the German company Energie Baden-Württemberg AG (‘EnBW’), EDF was required by the Commission of the European Communities to give a commitment to dispose of its shareholding in CNR, under the Commission Decision of 7 February 2001 declaring a concentration compatible with the common market and the EEA Agreement (Case COMP/M.1853 — EDF/EnBW) (OJ 2002 L 59, p. 1) (‘the EDF/EnBW Decision’).

5 On 24 June 2003 the applicant acquired shares in CNR representing 17.86% of the latter’s capital and 16.88% of its voting rights.

6 On 27 June 2003 EDF and the applicant signed a promise to sell and to purchase shares, under which EDF transferred to the applicant its entire shareholding in CNR’s capital.

7 On 24 July 2003 the applicant concluded with the Caisse des dépôts et consignations (CDC) a shareholders’ agreement (‘the Agreement’) within the framework of CDC’s acquisition of SNCF’s shareholding in CNR’s capital. Under that Agreement, in particular:

– the applicant was granted an option to sell and to purchase CNR’s shares in the event that the rule laid down in Article 21 of the Murcef Law should be repealed, giving the applicant a preferential right to acquire all or part of the shares of a public shareholder becoming available and also the shareholding of CDC;

– CDC and the applicant were to vote in concert in the general meeting and on the supervisory board in order to appoint the shareholders’ representatives on the supervisory board and the members of the management board of CNR;

– the applicant and CDC each had the right to object if the other party envisaged entering into a voting agreement with one or more other shareholders.

8 On 23 December 2003 the applicant came into possession of the shares held until then by EDF and by the Chamber of Commerce and Industry of Villefranche and Beaujolais (France), thus increasing its shareholding to 49.95% of the capital and 47.92% of the voting rights of CNR.

9 On 9 August 2007 the applicant contacted the Commission in order to obtain its opinion on the applicant’s acquisition of de facto sole control of CNR. A dialogue was initiated with the Commission’s services in order to determine whether there was indeed such control and to specify the information necessary in order to lodge a form of notification under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1). On 26 March 2008 the formal notification form (‘Form CO’) was lodged, in which the applicant stated that it had acquired de facto sole control of CNR in the course of 2007. By decision of 29 April 2008 (Case COMP/M.4994 — Electrabel/Compagnie national du Rhône) (‘the authorisation decision’) the Commission stated that it did not oppose that concentration and declared it compatible with the common market on the basis of Article 6(1)(b) of Regulation No 139/2004, while leaving open the question of the precise date on which the applicant had acquired de facto sole control of CNR.

10 On 17 December 2008 the applicant received a statement of objections, in which it was stated that the Commission had reached the provisional conclusion that the concentration between the applicant and CNR had been put in place on 23 December 2003 before being notified to the Commission and before being declared compatible with the common market, which constituted an infringement of Article 7(1) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (corrected version OJ 1990 L 257, p. 13), as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1).

11 On 13 February 2009 the applicant replied to the statement of objections.

12 On 11 March 2009 a hearing took place.

13 On 10 June 2009 the Commission adopted Decision C(2009) 4416 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Regulation No 4064/89 (Case COMP/M.4994 — Electrabel/Compagnie nationale du Rhône) (‘the contested decision’).

14 The operative part of the contested decision is worded as follows:

‘Article 1

By putting into effect a concentration with a Community dimension in the period 23 December 2003 to 9 August 2007, before it was notified and before it was declared compatible with the common market, [the applicant] has infringed Article 7(1) of [Regulation No 4064/89].

Article 2

A fine of EUR 20 000 000 is hereby imposed on [the applicant] for the infringement referred to in Article 1.

Article 3

The fine imposed in Article 2 shall be paid in euro within three months …’

Procedure and forms of order sought

15 By application lodged at the Court Registry on 20 August 2009, the applicant brought the present action.

16 The applicant claims, in substance, that the Court should:

– principally, annul the contested decision in its entirety;

– in the alternative, annul Articles 2 and 3 of the contested decision or, at least, reduce the amount of the fine imposed on the applicant in Article 2;

– order the Commission to pay the costs.

17 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

18 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the Court, put a number of written questions to the parties and requested the applicant to produce certain documents. The parties complied with those requests within the prescribed period.

19 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 30 November 2011.

Law

20 In support of the action, the applicant formulates a number of principal claims and a number of alternative claims. In support of the principal claims, the applicant puts forward two pleas in law, whereby it seeks annulment of the contested decision in its entirety. The first plea alleges infringement of Article 7(1) of Regulation No 4064/89 and infringement of Article 253 EC in that the Commission did not correctly characterise the infringement and in that the contested decision contains a contradiction in the grounds. The second plea alleges infringement of Article 3(3) and Article 7(1) of Regulation No 4064/89 and breach of the principle that the Commission is required to comply with the rules which it has imposed on itself. In support of the alternative claims, the applicant puts forward two pleas whereby it seeks annulment of the fine or a reduction of the amount of the fine. The third plea alleges infringement of Article 1 of Council Regulation (EEC) No 2988/74...