Areva and Others v European Commission.

• Jurisdiction: European Union
• Celex Number: 62011CJ0247
• ECLI: ECLI:EU:C:2014:257
• Date: 10 April 2014
• Docket Number: C‑247/11,C‑253/11
• Court: Court of Justice (European Union)
• Procedure Type: Recurso contra una sanción

JUDGMENT OF THE COURT (Fourth Chamber)

10 April 2014 ( *1 )

Table of contents

I – Legal context

II – Background to the dispute and the contested decision

III – The actions before the General Court and the judgment under appeal

IV – Forms of order sought by the parties and the procedure before the Court of Justice

V – The appeals

A – Summary of the grounds of appeal

B – Examination of the grounds

1. The grounds relating to whether the unlawful conduct of the subsidiaries may be imputed to their parent companies

a) The first ground relied on by the Alstom group companies, alleging breach of the obligation the Commission is under to provide adequate reasoning

i) The first part of the first ground of appeal relied on by the Alstom group companies

– Arguments of the parties

– Findings of the Court

ii) The second part of the Alstom group companies’ first ground of appeal

b) The first ground of appeal relied on by Areva and the second ground of appeal raised by the Alstom group companies, alleging infringement of the obligation the General Court is under to provide adequate reasoning

i) The first part of the second ground of appeal relied on by the Alstom group companies

ii) The first ground of appeal raised by Areva and the second part of the second ground of appeal relied on by the Alstom group companies

– Arguments of the parties

– Findings of the Court

iii) The fourth part of the second ground of appeal relied on by the Alstom group companies

c) The Alstom group companies’ third ground of appeal, alleging infringement of Article 101 TFEU, in particular the rules governing the imputation of infringements, the principles of the right to a fair hearing and the presumption of innocence

i) The first part of the Alstom group companies’ third ground of appeal

ii) The second part of the Alstom group companies’ third ground of appeal

2. The grounds of appeal relating to the application of the rules governing joint and several liability for payment of fines

a) The arguments relating to the de facto joint and several liability imposed on the parent companies Areva and Alstom

i) Arguments of the parties

ii) Findings of the Court

– Admissibility

– Substance

b) The arguments relating to the internal allocation of liability for payment of the fine between those jointly and severally liable

i) Arguments of the parties

ii) Findings of the Court

3. Areva’s fourth ground of appeal, alleging infringement of the principles of proportionality and equal treatment in the determination of the fine imposed on it

i) Arguments of the parties

ii) Findings of the Court

4. Alstom’s fifth ground of appeal, alleging infringement of the right to an effective legal remedy

i) Arguments of the parties

ii) Findings of the Court

VI – Costs

‛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’

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

APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 and 20 May 2011,

Areva SA (C‑247/11 P), established in Paris (France), represented by A. Schild, C. Simphal and E. Estellon, avocats,

appellant,

the other parties to the proceedings being:

Alstom SA, established in Levallois-Perret (France),

T & D Holding SA, formerly Areva T & D Holding SA, established in Levallois-Perret,

Alstom Grid SAS, formerly Areva T & D SA, established in La Défense (France),

Alstom Grid AG, formerly Areva T & D AG, established in Oberentfelden (Switzerland) (C‑253/11 P),

represented by J. Derenne, A. Müller-Rappard and M. Lagrue, avocats,

applicants at first instance,

European Commission, represented by V. Bottka and N. von Lingen, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

and

Alstom SA,

T & D Holding SA,

Alstom Grid SAS,

Alstom Grid AG (C‑253/11 P),

represented by J. Derenne, A. Müller-Rappard and M. Lagrue, avocats,

appellants,

the other parties to the proceedings being:

Areva SA, represented by A. Schild, C. Simphal and E. Estellon, avocats,

applicants at first instance,

European Commission, represented by V. Bottka and N. von Lingen, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as Judge of the Fourth Chamber, M. Safjan, J. Malenovský and A. Prechal (Rapporteur), Judges,

Advocate General: P. Mengozzi,

Registrar: V. Tourrès, Administrator,

having regard to the written procedure and further to the hearing on 2 May 2013,

after hearing the Opinion of the Advocate General at the sitting on 19 September 2013,

gives the following

Judgment

1 By their appeals, Areva SA (‘Areva’), Alstom SA (‘Alstom’), T & D Holding SA, Alstom Grid SAS and Alstom Grid AG (the latter four companies, together, ‘the Alstom group companies’, and all five companies, together, ‘the appellant companies’) seek to have set aside the judgment of the General Court of the European Union in Joined Cases T-117/07 and T-121/07 Areva and Others v Commission [2011] ECR II-633 (‘the judgment under appeal’), in so far as, by that judgment, that court rejected their actions for annulment in part of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear), a summary of which was published in the Official Journal of the European Union (OJ 2008 C 5, p. 7) (‘the contested decision’), or, in the alternative, a reduction in the amount of the fine imposed on the appellant companies by that decision.

I – Legal context

2 Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), entitled ‘Fines’, provides as follows: ‘… 2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article 81 [EC] or Article 82 [EC] … … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. …’

3 Article 31 of that regulation, entitled ‘Review by the Court of Justice’, is worded as follows: ‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’

II – Background to the dispute and the contested decision

4 The facts of the dispute, as set out in paragraphs 1 to 35 of the judgment under appeal, may be summarised as follows.

5 The disputes concern a cartel relating to the sale of gas insulated switchgear (‘GIS’), which is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.

6

At paragraphs 6 to 9 of the judgment under appeal, the various companies involved in that dispute are described as follows: ‘6 Alstom (formerly Alsthom), a limited liability company under French law, is the parent company of a group of companies (“the Alstom Group”). Throughout the period from 15 April 1988 to 8 January 2004, the Alstom Group was active in the electricity transmission and distribution sector (“the T & D sector”) and, in particular, in GIS. 7 The Alstom Group’s GIS activities in France were carried out by Alsthom SA (France) until 1989, when Alsthom SA (France) was renamed GEC Alsthom SA, which was a wholly-owned subsidiary of GEC Alsthom NV. On 16 November 1992, Kléber Eylau SA was created and was granted the French GIS activities by an agreement which took effect on 7 December 1992. GEC Alsthom SA owned 99.76% of Kléber Eylau and Etoile Kléber owned 0.04%. In June 1993 Kléber Eylau’s name was changed to GEC Alsthom T & D SA, which, in June 1998, became Alstom T & D SA. Alstom T & D SA was a wholly-owned subsidiary of Alstom Holdings (France), which was in turn a wholly-owned subsidiary of Alstom. 8 From January 1986, Alstom’s GIS activities in Switzerland ran parallel to those in France, when Sprecher Energie AG became a wholly-owned subsidiary of Alsthom. In November 1993, Sprecher Energie became GEC Alsthom T & D AG, which, in July 1997, became GEC Alsthom AG and, in June 1998, became Alstom AG (“Alstom Switzerland”). On 22 December 2000, the latter was acquired by Alstom Power (Schweiz) AG. The new entity was called Alstom (Schweiz) AG. In November 2002, a new legal entity was created within the Alstom Group, to which the activities in the T & D sector in Switzerland were transferred. Initially named Alstom (Schweiz) Services AG, that new entity was subsequently renamed Alstom T & D AG.

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