Areva and Others (T-117/07) and Alstom (T-121/07) v European Commission.

• Jurisdiction: European Union
• Court: General Court (European Union)
• Writing for the Court: Pelikánová
• ECLI: ECLI:EU:T:2011:69
• Docket Number: T-117/07,T-121/07
• Date: 03 March 2011
• Procedure Type: Recurso contra una sanción - fundado

Cases T-117/07 and T-121/07

Areva and Others

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Rights of the defence – Duty to state reasons – Whether answerable for the infringement – Duration of the infringement – Fines – Joint and several liability for payment of a fine – Aggravating circumstances – Role of leader – Mitigating circumstances – Cooperation)

Summary of the Judgment

1. Competition – Community rules – Undertaking – Concept – Economic unit

(Art. 81(1) EC)

2. Competition – Community rules – Infringements – Attribution – Legal person responsible for the running of the undertaking at the time of the infringement – Exceptions

(Art. 81(1) EC)

3. Competition – Community rules – Infringement committed by a subsidiary – Attribution to the parent company having regard to the economic and legal links between them

(Art. 81(1) EC)

4. Acts of the institutions – Statement of reasons – Obligation – Scope – Plea based on absence or inadequacy of the statement of reasons – Plea based on inaccuracy of the statement of reasons – Distinction

(Art. 253 EC)

5. Community law – General principles of law – Non-retroactivity of penal provisions – Scope – Competition

(Council Regulations Nos 17, Art. 15(4), and 1/2003, Art. 23(5))

6. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Commission bearing the burden of proving the duration of the infringement

(Art. 81(1) EC; Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3))

7. Competition – Administrative procedure – Time-limit with regard to proceedings – Point from which time starts to run

(Art. 81 EC; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 25)

8. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

9. Competition – Fines – Joint and several liability for payment – Conditions

(Art. 81(1) EC; EEA Agreement, Art. 53)

10. Competition – Fines – Joint and several liability for payment – Scope

(Art. 81(1) EC; EEA Agreement, Art. 53)

11. Competition – Fines – Joint and several liability for payment – Possibility for each of the debtors to bring an annulment action against such a decision

(Art. 81(1) EC; EEA Agreement, Art. 53)

12. Competition – Community rules – Infringements – Attribution – Principle that penalties must be specific to the offender and the offence – Scope

(Art. 81(1) EC)

13. Community law – Principles – Right to effective judicial protection – Enshrined by the European Convention on the Protection of Human Rights reaffirmed by the Charter of Fundamental Rights of the European Union

(Charter of Fundamental Rights of the European Union, Art. 47)

14. Competition – Principles – Commission decision finding an infringement – Effective judicial review of the Commission’s decisions – Independent and impartial court – Unlimited jurisdiction

(Arts 81 EC, 229 EC and 230 EC; Council Regulations Nos 17, Art. 17, and 1/2003, Art. 31)

15. Competition – Community rules – Mandatory

(Art. 81 EC; EEA Agreement, Art. 53)

16. Competition – Administrative procedure – Decision finding an infringement and imposing a fine – Duty to comply with principle of conferred powers

(Arts 5 EC and 81 EC; EEA Agreement, Art. 53; Council Regulations Nos 17, Art. 15(2), and 1/2003, Arts 7(1) and 23(2))

17. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Provisional nature – Abandonment of objections shown to be unfounded with regard to certain companies involving a deterioration in the position of the company maintained as the addressee of the decision – Admissibility in the light of the exercise by the company of its right to be heard

(Council Regulations Nos 17, Art. 19(1), and 1/2003, Art. 27(1))

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader or instigator of the infringement – Concept

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Sections 2 and 3)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader of the infringement – Role played successively by various undertakings and companies managing them

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 2)

20. Competition – Fines – Amount – Discretion of the Commission – Judicial review – Unlimited jurisdiction

(Art. 229 EC; Council Regulations Nos 17, Art. 17, and 1/2003, Art. 31)

21. Competition – Fines – Amount – Determination – Criteria – Taking account of the worldwide turnover during the last complete year of the infringement with respect to the goods and services covered by it

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A)

1. In competition law, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the infringement in question. In prohibiting undertakings inter alia from entering into agreements or participating in concerted practices which may affect trade between Member States and having as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision.

(see para. 63)

2. In competition matters, in accordance with the principle of personal liability, under which a person can be held liable only for his own acts, it falls, in principle, to the person managing the undertaking when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, that undertaking is the responsibility or under the management of a different person.

In certain exceptional circumstances, the case‑law accepts that it is possible to derogate from the principle of personal liability under the so-called ‘economic continuity’ criterion, under which an infringement of the rules on competition may be imputed to the economic successor of the legal person which committed it, even where the latter has not ceased to exist on the date of adoption of the decision finding the infringement, in order that the effectiveness of those rules will not be compromised owing to the changes to, inter alia, the legal form of the undertakings concerned.

The Commission is entitled not to use the ‘economic continuity’ criterion and to hold personally liable for the participation of the undertaking in the infringement a parent company which directly managed that undertaking before transferring it to the wholly-owned or majority-owned subsidiaries, until the date on which those subsidiaries and that undertaking were finally transferred to another group.

(see paras 65-66, 72, 78)

3. In competition matters, it is, in principle, for the Commission to demonstrate that the parent company exercises a decisive influence on its subsidiary’s conduct on the market on the basis of factual evidence, including, in particular, any management power which the parent company exerted over its subsidiary. However, the Commission may reasonably presume that a wholly‑owned subsidiary carries out, in all material respects, the instructions given to it by its parent company and that that presumption implies that the Commission is not required to check whether the parent company has actually exercised that controlling power over its subsidiary. When, in the statement of objections, the Commission indicates its intention to hold a parent company personally liable for an infringement for which its subsidiary was responsible, relying on the presumption of liability which results from the fact that the parent company holds all the capital of that subsidiary, it is for the parent company which intends to dispute the liability attributed to it to produce, during the administrative procedure or, at the latest, before the Court, sufficiently conclusive evidence to rebut the presumption by demonstrating that, despite the parent company holding all of its capital, the subsidiary actually determined its conduct on the market independently.

The Commission must be able to take into account, in the decision finding an infringement, the replies by the undertakings concerned to the statement of objections. In that regard, it must be able not only to accept or reject the arguments of the undertakings concerned but also make its own analysis of the matters put forward by them in order either to abandon such objections as have been shown to be unfounded or to supplement or adapt its arguments both in fact and in law in support of the complaints which it maintains. That is the case where the Commission’s decision is based not only on the presumption of liability resulting from the fact that the parent company holds all the capital in the subsidiaries, but also on facts provided during the administrative procedure and showing that:

– within the group the operative organisation had primacy over the legal structure and the project activities concerned were managed, at the highest level, by the parent company and its predecessors;

– six members of the board of the subsidiary companies had been, simultaneously or consecutively, members of the board of the ultimate parent companies before their transfer to a new group;

– the appointment by the parent company of a new member of the board of its subsidiaries active in the sector supports the...